A United States District Court for the Northern District of California jury returned a verdict in Cisco Systems Inc. v. Arista Networks, Inc., No. 14-cv-05344-BLF (N.D. Cal. Dec. 14, 2016), in favor of the defendant, Arista, awarding no damages to the plaintiff, Cisco. Cisco is an information technology company that produces Internet technology, such as routers and switches. Arista is a competitor formed by former Cisco employees which has gained a larger market share in recent years. The decision comes nearly two years after Cisco filed its complaint for copyright and patent infringement on December 5, 2014 seeking approximately $335 million in damages. While the jury found that there was no patent infringement, the jury’s decision vis a vis copyright is primarily why this case is important.

For its copyright claim, Cisco alleged that Arista infringed the commands used in its Command Line Interface (CLI). A CLI is a way to interact with computer software through written commands, which contrasts with the visual display modern users are more familiar with. For instance, a simple example of CLI would be “copy” or “paste,” but if any readers remember using DOS, every command you had to enter to install and then play SimAnt is an example of CLI. Commands can be copyrighted, but a command such as “copy” or “paste” could not be, likely due the merger doctrine which requires an idea be separate from its expression to obtain copyright protection. Arista, argued merger as well as scenes-a-faire and fair use as its defenses.

The jury held that Cisco’s CLI was not protected by copyright because of the doctrine of scenes-a-faire. Scenes-a-faire refers to elements of a work that are obligatory or required for the creative work, such as the stock character of a hardboiled gumshoe investigating a murder in a Noir thriller. The jury found that the way the CLI was designed and implemented was decided by external factors, not by Cisco’s own creativity.

This case is reminiscent of Oracle v. Google, 872 F. Supp. 2d 974 (N.D. Cal. 2012), rev'd and remanded, 750 F.3d 1339 (Fed. Cir. 2014), in which the trial court found the application program interface (API) used in Android phones was not infringing because API could not be copyrighted. The Federal Circuit reversed and remanded, but Google still prevailed after the jury found Google’s use of the API was fair use. The Federal Circuit will also hear the appeal in Cisco v. Arista as it has jurisdiction over all appeals from cases involving patent claims.

Cisco has had better luck outside of federal court, however, as it recently received an initial determination from the United States International Trade Commission that other actions by Arista infringed their patents. Due to recent successes regarding patents in more specialized courts and extremely costly losses in district courts regarding copyrights, software and other tech companies will likely begin to rely more on patents and less on copyright and will seek to patent more and more of their ideas, designs, and processes.

Oracle and Cisco present a conundrum for the future of IP law because balancing the incentive to innovate against stifling innovation through airtight protections for efficient software is no easy task. It is likely not a question that can be sufficiently solved by courts because it is inherently difficult in cases such as these to translate computer science to language and analogies that will make sense to laypeople and accurately describe reality. Ultimately, it will be interesting to see whether the first-mover advantage of IT companies will diminish significantly and whether that will lead to more drastic changes in patent or copyright law.