Sun fights back with patents of their own against NetApp

After a personal rapprochement failed, Sun CEO Jonathan Schwartz vowed today to (reluctantly) use Sun's patent portfolio to retaliate against a suit from NetApp. Both companies are now fighting to get the others' products taken off the market.

Sun fights back with patents of their own against NetApp
Jonathan Schwartz is not spoiling for a fight, but he's not shying away from one either. That's the takeaway message in today's blog entry from Sun's spunky CEO.

On September 5th, Network Appliances filed a lawsuit against Sun claiming that ZFS infringed on seven of its patents. The suit demanded an injunction against all current and future versions of ZFS. This would include open source versions, and versions used in Apple's MacOSX Leopard operating system.

Jonathan writes, "Last week, I reached out to their CEO to see how we could avoid litigation. I have no interest whatever in suing them. None whatever." NetApp laid out two conditions. "Number one, " he explained, "they'd like us to unfree ZFS, to retract it from the free software community." What is free cannot be unfreed, says Jonathan, so that's out of the question.

"Second," writes Jonathan, "they want us to limit ZFS's allowable field of use to computers - and to forbid its use in storage devices." Huh? Computers are storage devices, and storage devices are computers, says Jonathan, so that's also impractical.

Rebuffed by NetApp and frustrated by the lack of options, Schwartz says Sun has no other choice but to respond in kind:

Later this week, we're going to use our defensive portfolio to respond to Network Appliance, filing a comprehensive reciprocal suit. As a part of this suit, we are requesting a permanent injunction to remove all of their filer products from the marketplace, and are examining the original NFS license - on which Network Appliance was started.... In addition to seeking the removal of their products from the marketplace, we will be going after sizable monetary damages.

Saying that Sun has "a huge array" of patents that cover storage systems and software, Jonathan vowed to use them to fight back against NetApp. "By opting to litigate vs. innovate," he writes, "[NetApp] is disrupting their customers and employees across the world."

Schwartz made a point to thank all the free software advocates who have helped the company defend ZFS. Sun will donate half of any monetary awards to the Software Freedom Law Center and the Peer to Patent initiative, with the remaining to go to a venture fund fostering innovation in the free software community. "Please rest assured we will use this opportunity to highlight the futility of using software patents to forestall competition - in the commercial marketplace, and among the free community."

[Update: NetApp CEO Dave Hitz responds.]

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