NetApp claims Sun's ZFS violates its patents

Sun has been touting the ZFS storage software as a key advantage of its Solaris 10 operating system. Network Appliance is alleging that ZFS violates seven of its patents, and is seeking a permanent injunction that would prevent Sun from shipment or further development of the software, which has also been released as open source under the CDDL license. Dawn Kawamoto of news.com outlines one version of the battle:

Sun approached NetApp about 18 months ago with claims the storage maker was violating its patents and seeking a licensing agreement, NetApp Chief Executive Dan Warmenhoven said in a statement.

Several months into those discussions and following a review of the matter, NetApp made a discovery of its own, Warmenhoven said, concluding NetApp did not infringe the patents but that Sun infringed on NetApp's.

In April, talks between the companies broke off.

"Sun shifted from an aggressive position to not returning calls," Warmenhoven said.

Dave Hitz, co-founder and executive vice president of NetApp posted in his blog about the suit:

As we file this case, I’m painfully aware of the bad feelings that many people have about IP lawsuits. Business people sometimes view them as the last gasp of a dying company, while some technical folks view them as evil under any circumstances. In this case, I doubt that business people will be too concerned, given our growth rate, profitability, and the fact that we are responding to Sun’s claims against us. I expect skeptical technical people to be harder to comfort.

This case is especially sensitive, because Sun has released ZFS as open source. It is admirable to contribute to open source. I have done it personally, although it was a long time ago that I was writing code, and NetApp has also contributed as a company. But it doesn’t help the open source movement to give away code that is encumbered with someone else’s patent rights. The sooner we determine the true status of ZFS, the better it will be for everyone. NetApp certainly doesn’t believe that we can somehow erase every copy of ZFS that has been downloaded. (Impossible!) This lawsuit isn’t about downloads for personal or non-commercial use; it is about what Sun is doing.

We could have a long debate about the merits of the patent system. (I expressed my own qualms here.) But like it or not, it’s the law of the land. Here’s an analogy. Suppose you own a pro football team, and you really believe that touch football would be safer and more humane than tackle. You can lobby all you want to try to change rules, but until you are successful, I recommend that your team keep wearing pads and helmets. NetApp is participating in attempts to reform the patent system, but meanwhile we will play by the rules as they exist.

In closing, let me say that the legal system is a method of resolving disputes between companies, but it does not mean we are “at war”. During this process, we will continue to support all Sun products, including ZFS filesystems that use NetApp storage. It is not in anyone’s interest – Sun’s or ours – to leave a bunch of customers in the lurch. I hope that Sun will respond in kind.

So far, no comment from Sun...

Update 4:40 PM PST: Sun's response from Kristi L. Rawlinson of Sun PR but I get the feeling Sun CEO Jonathan Schwartz added some spice to this initial, dismissive, free-software-is-good-for-humanity response--"NetApp's attempt to use patent litigation to inhibit the meteoric rise of open source technologies like ZFS is tantamount to being unhappy with gravity."

NetApp's legal attack against Sun's open source ZFS solution which is freely available in the marketplace is a clear indication that NetApp considers Sun technology a threat, and is a direct attack on the open source community. ZFS is the fastest growing storage virtualization technology in the marketplace, and NetApp's attempt to use patent litigation to inhibit the meteoric rise of open source technologies like ZFS is tantamount to being unhappy with gravity. As Sun knows well, and NetApps' customers obviously recognize, innovation works better than litigation.

Many of the claims raised in the lawsuit are factually untrue. For example, it was NetApp who first approached Sun seeking to acquire the Sun patents NetApp is now attempting to invalidate. It is unfortunate that NetApp has now resorted to resolving its business issues in a legal jurisdiction (East Texas) long favored by "patent trolls."

Bottom line, Sun indemnifies its customers, and stands behind the innovations we deliver to the marketplace.

Best regards, Kristi