On February 5, 2015, ALJ Thomas B. Pender issued Order No. 3 in Certain Network Devices, Related Software and Components Thereof (II) (Inv. No. 337-TA-945). In the Order, ALJ Pender denied Respondent Arista Networks, Inc.'s ("Arista") motion to consolidate Inv. Nos. 337-TA-944 and 337-TA-945.
According to the Order, Arista argued that Inv. Nos. 337-TA-944 and 337-TA-945 should be consolidated because the complaints in the two investigations "raise the same issues and evidentiary record: the accused products are the same, the domestic industry products are the same, the economic domestic industry issues are the same, the technologies are the same, the fact and expert witnesses will overlap, the documentary evidence will be the same, and many of the defenses will be identical." Complainant Cisco Systems, Inc. ("Cisco") opposed the motion, arguing that consolidation would conflict with "the Commission's typical practice of ensuring that separate technologies and issues be evaluated separately." Cisco also argued that consolidation would cause a six-month delay in the proceedings. The Commission Investigative Staff ("OUII") also opposed the motion, arguing that the issue of consolidation had already been considered by the Commission and the Chief ALJ, and that consolidation had not been ordered.
After considering the arguments, ALJ Pender determined to deny Arista's motion. The ALJ noted that the Commission had delegated authority to the Chief ALJ to consolidate the investigations, and that the Chief ALJ had chosen not to consolidate. Accordingly, ALJ Pender viewed Arista's motion as seeking reconsideration of the Chief ALJ's decision, which exceeded ALJ Pender's authority. Moreover, ALJ Pender noted that even if it were in his authority to consolidate, "the number, variety, and technical complexity of the patents involved in the two investigations suggest that consolidation would run contrary to the Commission's policy favoring expeditious proceedings."