A federal judge dismissed Cisco's indirect infringement claims against Arista Networks, a complaint that accompanied a patent and copyright infringement case against its data center rival.
The patent and infringement litigation, filed late last year, still stands and is proceeding.
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According to Courthouse News Service, U.S. Federal Judge Beth Labson Freeman earlier this month dismissed the pre-suit indirect infringement claims since Cisco conceded that it is not seeking damages for those claims.
Freeman's order states that Cisco "failed to allege sufficient facts to meet its own 'bright line' test."
The judge wrote in a footnote that the bright line test applied to software -- in this case, Arista's EOS+ operating system, which debuted a week after Cisco's patent infringement claim -- "is made difficult by the seeming blurry line that separates a 'new' product from a new 'version' of an old product, or just an update to address 'bugs' in the current version of the accused patent," Courthouse News Service reported.
She gave Cisco until July 23 to amend its complaint.
"At this stage, however, allegations summarizing Arista's puffery in sales and marketing materials is not enough," Freeman wrote.
Cisco said it expected Freeman's ruling and that it does not affect the patent infringement case.
"Judge Freeman's order giving us the opportunity to amend our complaint is exactly what we expected after last week's hearing," said Cisco Senior Vice President and General Counsel Mark Chandler, in a statement. "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. Their motion against the willfulness allegation doesn't rest of denial of infringement, but rather suggest that EOS+ is just a minor tweak to their earlier infringing product. Having owned up to that, maybe they will decide to step forward and admit their patent infringement."
Arista declined comment and said it would "respect the legal system and not comment on interim matters."