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Cisco Can't Shield Customers From Patent Suits, Court Rules
netbuzz writes "A federal appeals court in California has upheld a lower court ruling that Cisco lacks the necessary standing to seek dismissal of patent infringement lawsuits against some of its biggest customers – wireless network providers and enterprises – being brought by TR Labs, a Canadian research consortium. The appeals court agreed with TR Labs' that its patent infringement claims are rightfully against the users of telecommunications equipment – be it made by Cisco, Juniper, Ciena or others – and not the manufacturers. 'In fact, all of the claims and all of the patents are directed at a communications network, not the particular switching nodes that are manufactured by Cisco and the other companies that are subject of our claims,' an attorney for TR Labs told the court. The court made no judgment relative to the patents themselves or the infringement claims."
What prevents Cisco sell product with additional service: "in case of court case related to patents used within this device, our legal team will help free of charge"?
And simply provide lawyers anyway?
Because Cisco has patents and a fleet of IP attorneys. In other words, the patent holders are looking to sue people that can't fight back.
If the patent was for using some piece of hardware in a new and inventive way that the original manufacturer hadn't thought of, then maybe it would be valid. But using Cisco networking gear to set up a network in exactly the way described in the manual or training materials doesn't come into that category.
In this case it's actually the opposite: It's them suing the people that BOUGHT YOUR SHITTY CHINESE CARS, and not letting you shield the folks that bought those cars from you, because their patents are covering a delivery-van company instead of delivery-vans specifically.
The multiple levels of judges have agreed Cisco's gear does not infringe. It can be used to infringe, or used in ways that don't infringe.
According to the rulings, suing Cisco would be like suing Xerox for copyright infringement. Just because a copy machine CAN be used by an infringer doesn'tmake Xerox liable.
I do wonder if Cisco products are DESIGNED to be used in the way that plaintiff claims is infringement. Cisco seems to be suggesting that.
The headline is misleading about the actual ruling; here it is:
"TR Labs’ concession that it is willing to grant Cisco an unqualified covenant not to sue, TR Labs’ concession that it has no basis for asserting direct or indirect infringement claims against Cisco, including the parties’ agreement that Cisco’s products have substantial non-infringing uses, and Cisco’s failure to identify any obligation to indemnify or defend its customers distinguish this action from others in which this Court has found declaratory judgment jurisdiction and support the district court’s finding that it lacked the same. We therefore affirm the district court ruling."
http://www.finnegan.com/files/Publication/810cf458-9bde-4f9b-a98f-d5293cafbaad/Presentation/PublicationAttachment/11d7000f-5c7b-47ae-ad7a-db503720b379/12-1687%208-29-13.pdf
So because Cisco has no contractual obligation to indemnify their customers, and TR Labs is willing to give an unqualified covenant not to sue Cisco for direct or indirect infringement by Cisco's customers, and it's in the outside realm of possibility that all customers are using Cisco products in a non-failover configuration (the subject of the patents is failover) because they're stupid and fail to follow best common industry practice, Cisco is not a party to the suits against the customers.
Cisco could have taken this bullet if it had been willing to indemnify their customers via an amended terms and conditions on the Cisco OS software on the devices; it chose not to do so.
The patents are about automatic failover when network nodes or spans break. The earlier patents are about having spare nodes and spans and deciding which to use when some part of the network fails (eg. having a node which broadcasts "who can help?" and available nodes broadcast back "i can help!" and a single node decides which available node to use). The later patents are about turning on and off routes between nodes to reconfigure the network, usually into some sort of mesh network.
I'm not a network engineer so it's hard for me to judge, but the earlier patents seem trivial to me especially since they're from the late 1990s. The latter patents might have some merit - the idea of changing the network to a mesh is interesting, but my gut feeling is they're mostly solutions that any decent engineer would come up with after a bit of head scratching.
Graham
Compare Spanning Tree Protocol.
If the patent was for using some piece of hardware in a new and inventive way that the original manufacturer hadn't thought of, then maybe it would be valid. But using Cisco networking gear to set up a network in exactly the way described in the manual or training materials doesn't come into that category.
Brilliant... new patent
Theory and Method for setting up a router
Claim 1. A method of configuring a router in which a serial port, default IP address, DHCP provided IP address, multicast DNS, dynamically registered DNS, or IPv6 stateless autoconfigured address is used to facilitate gaining initial access to the router.
Claim 2. A method in which the response to a DHCP or BOOTP request is used to discover a file server, such as a FTP or TFTP server, containing initial configuration data or instructions.
Claim 3. A method of configuring a router, in which a broadcast-based discovery protocol is used to discover a IP or MAC address to access an unconfigured router.
Claim 4. A method of configuring an IP-based router in which a non-IP protocol such as Ethernet is used with special purpose software to facilitate configuration of a device.
Claim 5. A method of configuring a router, in which special software is provided to install on a server, to establish communication with unconfigured devices.
Claim 6. A method where a wireless, USB, Serial port, or other dedicated interface is used to configure a router.
Claim 7. A method of configuring a router, in which media containing software or a download link for software is used to install software on a PC, for performing initial configuration of a router.
Claim 8. The method of configuring a router in which a book, manual, poster, card, piece of paper, or other written material accompanying the router is read, disseminated, and then steps from the document are followed.
Claim 9. The above, where steps are taken from digital media distributed with the router instead.
Claim 10. The above, where configuration steps are taken from an internet website whose URL was provided with the router instead.
Claim 11. The above, where configuration steps are taken from an internet website whose URL is the manufacturer of the device.
Claim 12. The above, where configuration steps are taken from an internet website whose location can be discovered using a search engine such as Bing, Yahoo, or Google search for the make, model number, or type of router.
Claim 13. The above, where some steps are skipped in the configuration process.
Claim 14. The above, where some pertinent details are collected from the documentation or website; such as default IP address, default username, default password, administration URL.
Claim 15. The above, where software is downloaded to automatically configure the device, instead of documentation.
Claim 16. The above, where a phone call is placed to a contact or support line provided the manufacturer.
Claim 17. The above, where a phone call is placed to a contact or support line provided by a reseller, retailer, consultant, or other third party contact instead.
Claim 18. The above claims, where an e-mail, IRC Chat, Instant messenger, Skype, VoIP service, Pastebin, or "Blog" is used instead of a telephone.
Claim 19. The above claims, where a written, visual or audio communication on a private or public social networking website such as Twitter, Facebook, Instagram, Youtube, or Google plus is used instead.
Claim 20. The above claims, where any letters containing configuration instructions or details are sent or received using postal mail.
In cases like this, they kinda have to, or else no-one will buy Cisco again, or the customer who just had to settle will then sue Cisco for all their losses.
Waiting for an amusing sig.
This decision is a 180 degree turn in logic from other court decisions on IP infringement. One example: file sharing sites being found guilty of providing platforms for illegal file sharing. But that's because RIAA and MPAA were in those cases specifically suing the creators of the platform, while at the same time pursuing other tactics against the users (file sharing individuals like Jammie Thomas).
TR Labs doesn't want to take on Cisco because Cisco is their cash cow. As long as Cisco keeps on selling products that infringe, TR Labs can sue customers that build networks offering services on those products. TR has no obvious business need to shut down Cisco. And TR probably considers their patents at risk if they sue Cisco directly, or they would have sued Cisco for very large amounts of money already. If Cisco thought their products infringed, they would certainly have spent some time negotiating and perhaps worked out a license. This route is lower risk for TR's alleged IP.
For a lot of things, Cisco is the only game in town these days. Well, unless you want to pony 10 times as much for carrier-grade Alcatel-Lucent stuff that has a lifetime warranty. The A-L stuff is great, but to use a car analogy, it would be similar to asking Ferrari to custom-design and build a minivan that is used for taking kids to school and back.
I might be wrong, but generally, with the Cisco-only protocols in use, it is hard to get away from them.