Litigoperation: Litigating While Still Cooperating (was “NetApp Sues Sun”)

Since NetApp sued Sun, our employees have been curious how this lawsuit will affect the way they do their jobs. Here is my message to them:

If your job is to cooperate with people from Sun, then keep on cooperating with them! Be nice to them. Aside from the small team whose job is to work on this lawsuit, I hope that employees can mostly ignore it.

People have asked how I can take this attitude. A lawsuit does mean that we have an important disagreement, but it does not mean we must be “at war”. Even though we disagree, Sun and NetApp can keep working together as major IT vendors to effectively support our shared customers.

Ray Noorda, once the CEO of Novell, coined the term coopetition to describe the relationship between companies that compete, but also cooperate. A great example is NetApp’s relationship with EMC. We compete with their storage products, but we partner very effectively with VMware, which EMC owns. (Diane Greene, the CEO of VMware, even recorded a video for our annual sales conference earlier this year.) We do compete with Sun, but many, many Sun servers use NetApp storage, and we have cooperated in areas like fixing customer problems and improving NFS. I remember the early days of NFS when Sun sponsored the Connectathon conference. Engineers from all the competing computer companies would come together to test their implementations of NFS. (I always thought that management would go crazy if they saw how closely the engineers were working together to find each other’s problems and help fix each other’s bugs.)

In this same spirit, companies that are litigating can still cooperate. (Litigoperation. You heard it here first.)

Part of Jonathan’s response to our lawsuit stunned me. He simply denied our account: “First, Sun did not approach NetApps about licensing any of Sun's patents and never filed complaints against NetApps or demanded anything.” Our name is really NetApp, without the ‘s’, but I didn’t want to edit the quote.

Here is an e-mail from Sun’s lawyers that refers to “claim charts mapping StorageTek/Sun patent claims onto NetApp products.” It says they had originally sent these to us “over a year and a half ago.” Do the math, and you can see that this started in the StorageTek days, but Sun continued it after the acquisition. Their proposed settlement was “a disk storage cross license in exchange for payment from NetApp to Sun of $36.548M.” At other times, Sun said it was entitled to hundreds of millions of dollars, so we are talking about very large sums of money.

On the other hand, it was no surprise for Jonathan to focus on open source, but I just don’t get it. For me, one of the most important rules of open source is that you must only give away things that belong to you. This is a lawsuit about defending our intellectual property against Sun, and against what Sun is paying their own engineers to do. It does complicate things that Sun has open sourced ZFS, but this is not a lawsuit about open source.

Comments

[Lester]

POS.

[Hamish Allan]

Let's say I'm an average Joe who's heard about this case. I've read the blogs; I can't really who's telling the truth and who's lying. I'm maybe already slightly predisposed against NetApp because I know that the outcome of the case will affect the availability of some open-source software. However, I'm not inherently anti-IP; if Sun engineers copied their ideas from WAFL, compensation should be made. So, are NetApp's patents valid? I've heard that there's some prior art, but I don't have the technical know-how (or the time to find out about enough) to evaluate that. So what do I know? Well, I know that NetApp filed the case in East Texas.

Hold on, what?

A Californian company decides to sue another Californian company, and they file it in Texas? That's worth finding out about. A quick Googling later and I have all the facts I need to make my judgment. NetApp are the bad guys. I can tell this because even they don't believe in their own patent claim. Go Sun! Fight the good fight! Send NetApp the way of SCO!

Note: the views here don't necessarily represent the views of the comment author. Well, okay, they do. But my point is, you don't need to know *anything* about the case other than that NetApp chose to file in Texas. You might as well have printed a T-shirt that said "WE CANNOT WIN THIS CASE ON MERIT" and worn it to a press conference.