Is "marketing puffery" admissible in court?

Maybe, but it's not strong enough evidence to justify damages in a patent lawsuit, as Cisco found out on July 9.

That's when Judge Beth Labson Freeman granted a motion by Arista Networks, filed in March, to dismiss Cisco's charges of "willful patent infringement and pre-suit indirect patent infringement." But that's OK by Cisco, which actually claimed victory in a story published Tuesday by Courthouse News Service.

This doesn't end the legal battle. Cisco filed two lawsuits against Arista in December; the one in question alleges infringement of two patents and, separately, copyright infringement. The copyright part of the case remains intact.

The other lawsuit against Arista involves 11 patents. That one was put on hold in February, pending an investigation by the International Trade Commission (ITC) into those same patents.

Cisco appended the two-patent suit to include an accusation of "willful" infringement, which would triple the damages against Arista, should the company be found guilty. That's one of the charges thrown out by the July 9 ruling.

The accusation stemmed from Arista's Dec. 10 announcement of EOS+, described as "an evolution of Arista EOS." Cisco claims that EOS+ is a new product that infringed the two patents mentioned in the lawsuit. Because that lawsuit was served to Arista on Dec. 9, Cisco argued that EOS+ counted as a willfully infringing product.

During oral arguments, Cisco had also suggested to the court a "bright line" test to determine if this was a willful-infringement case. That strategy seems to have backfired, because Judge Freeman didn't think Cisco's arguments passed the test.

"The Court finds that Plaintiff has failed to allege sufficient facts to meet its own 'bright line' test and the complaint lacks sufficient factual allegations to distinguish this case from the holdings in" previous cases, the ruling reads.

Moreover, Judge Freeman seems to believe EOS+ is more a software revision than a new product. Given the malleable nature of software, it doesn't seem fair to consider each revision to be equivalent to a newly issued product, she noted.

"Upon amended pleadings, the Court would be willing to revisit this issue. At this stage, however, allegations summarizing Arista’s puffery in sales and marketing materials is not enough. Plaintiff must therefore plead that a defendant’s conduct did more than continue selling the alleged infringing product," she wrote in the ruling.

The wording sounds like Cisco is being scolded for trying to use press releases — which, let's face it, aren't known for their objectivity — as part of a legal argument.

Cisco's response? This is great news!

It's an "opportunity to amend our complaint" and make Arista look bad, as Cisco General Counsel Mark Chandler explained to Courthouse News Service:

Arista is left in the strange position of arguing in court that their claims that the EOS+ product is 'pioneering,' were actually just 'marketing puffery,' as the judge put it. They introduced EOS+ even after they knew of our allegations that they had used our patented technologies, so there can be no doubt that their action was willful. Having owned up to that, maybe they will decide to step forward and admit their patent infringement. The patent infringement claims are unaffected by the judge's order.

Cisco's deadline to file an amendment is July 23.

Separately, the matter of pre-suit indirect infringement — that is, accusations related to Arista's behavior before Cisco filed suit in December — was dismissed because Cisco is not seeking any damages there.

Photo by Brian Turner on Flickr, cropped. CC2.0 license.