Sun/NetApp patent dispute heats up

While Oracle and BEA are duking it out over acquisition price, Sun and NetApp are suing and countersuing each other over patents related to the Unix file system, ZFS. First, Network Appliance sued Sun, claiming that ZFS infringes on seven of its patents, and asked that ZFS be pulled from the free software community and for Sun to curtail its use of the software. Today Sun filed a counterclaim, seeking a permanent injunction against NetApp's file products and "sizable" monetary damages.

In his blog posted titled "ZFS puts Net App viability as risk?" (but with a URL http://blogs.sun.com/jonathan/entry/harvesting_from_a_troll) , Sun CEO Jonathan Schwartz wrote:

So 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. By opting to litigate vs. innovate, they are disrupting their customers and employees across the world.

In addition to seeking the removal of their products from the marketplace, we will be going after sizable monetary damages. And I am committing that Sun will donate half of those proceeds to the leading institutions promoting free software and patent reform (in specific, The Software Freedom Law Center and the Peer to Patent initiative), and to the legal defense of free software innovators. We will continue to fund the aggressive reexamination of spurious patents used against the community (which we've been doing behind the scenes on behalf of several open source innovators). Whatever's left over will fuel a venture fund fostering innovation in the free software community.

NetApp co-founder and executive vice president Dave Hitz responded to Schwartz's message of doom for his company in his blog with his message to all NetApp employees:

To: everyone-at-netapp Subject: Sun's Lawsuit Against NetApp

This morning, Sun filed suit seeking a “permanent injunction against NetApp” to remove almost all of our products from the market place. That’s some pretty scary language! It seems designed to make NetApp employees wonder, Do I still have a job? And customers to wonder, Is it safe to buy NetApp products?

I’d like to reassure you. Your job is safe. Our products are all still for sale.

Can you ever remember a Fortune 1000 company being shut down by patents? It just doesn’t happen! Even for the RIM/Blackberry case, which is the closest I can think of to a big company being shut down, it took years and years to get to that point, and was still averted in the end. I think it’s safe to say the odds of Sun fulfilling their threat are near zero.

If you are a customer, you can be confident buying NetApp products.

If you are an employee, just keep doing your job! Even if your job is to partner with Sun, keep doing your job. Here’s a ironic story. When James and I received the IEEE Storage Systems Award for our work in WAFL and appliances “which has revolutionized storage”, it was a Sun employee who organized the session where the award was presented. He was friendly, we were friendly, and we didn’t talk about the lawsuit. You can do it too. The first minute or two might feel odd, but then you’ll get over it. We have many joint customers to take care of.

If you are a salesman with concerned customers, feel free to show them this note, and maybe also point them at a couple of my blog posts (here and here). But don’t waste too much time before getting back to how we can work with them to solve their storage and data management problems.

I am frustrated with Sun and with Jonathan, as I describe in this blog entry. We have tried to be very open, detailed and specific about how Sun is infringing our intellectual property. We’ve tried to set a higher standard in how companies conduct patent litigation. It’s frustrating that Sun would just do a two-barreled blast, threatening to shut down our company. Frustrating and silly, to be honest, because it’s just so unlikely for a patent case to shut down a major corporation.

The other thing that’s frustrating is the way Jonathan wraps himself in the open source flag. We aren’t against open source, and we aren’t even against non-commercial use of ZFS. The number one rule of open source is that you should only give away stuff that belongs to you. That is what this suit is about, and everything else is just fluff.

NetApp is expected to have a formal response soon. More to come...