NetApp Sues Sun for ZFS Patent Infringement

This morning, NetApp filed an IP (intellectual property) lawsuit against Sun. It has two parts. The first is a “declaratory judgment”, asking the court to decide whether we infringe a set of patents that Sun claims we do. The second says that Sun infringes several of our patents with its ZFS technology.

How did we get here?

Like many large technology companies, Sun has been using its patent portfolio as a profit center. About 18 months ago, Sun’s lawyers contacted NetApp with a list of patents they say we infringe, and requested that we pay them lots of money. We responded in two ways. First, we closely examined their list of patents. Second, we identified the patents in our portfolio that we believe Sun infringes.

With respect to Sun’s patent claims, our lawsuit explains that we do not infringe, and – in fact – that they are not even valid. As a result, we don’t think we should be paying Sun millions of dollars.

On the flip side, our suit points out that Sun’s ZFS appears to infringe several of NetApp’s WAFL patents. It looks like ZFS was a conscious reimplementation of our WAFL filesystem, with little regard to intellectual property rights. Here’s what creators of ZFS have to say: “The file system that has come closest to our design principles, other than ZFS itself, is WAFL … the first commercial file system to use the copy-on-write tree of blocks approach to file system consistency.” One of the first patents I filed at NetApp describes this “copy-on-write tree of blocks” technique in detail.

We filed suit against Sun because after we pointed out the WAFL patents, their lawyers stopped getting back to us. The first part of our suit is a declaratory judgment. It’s complicated, but the basic idea is that Sun claims we infringe their patents, so we are requesting a trial to show that’s not true. In essence, a declaratory judgment calls their bluff. It allows us to force a legal conclusion, rather than leaving this threat hanging over our heads. The second part is a complaint against Sun for infringing several WAFL patents with ZFS.

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.

[Note: Sun has now countersued. See Jonathan’s blog post announcing that, and my response.]

Non-technical people can stop reading now.

It is important to me that technical readers not confuse NetApp with SCO, so in our lawsuit, we provided a starting point for people who want to dig deeper. This is not an exhaustive analysis of our case. We simply highlight one particular patent and one particular aspect of ZFS to help people see that this case of infringement is real.

Here’s how the ZFS designers describe filesystem consistency:

The best way to avoid file system corruption due to system panic or power loss is to keep the data on the disk self-consistent at all times, as WAFL does. To do so, the file system needs a simple way to transition from one consistent on-disk state to another without any window of time when the system could crash and leave the on-disk data in an inconsistent state.

In the ZFS paper, search for uberblock, and compare its role in filesystem consistency with the role of the root inode and file system information structure in our patent 5,819,292. Read claim 4 and its descendents, which describe our tree-of-blocks consistency technique. Claim 8 and its descendents describe efficient snapshot creation based on the tree-of-blocks. Some more useful references are here (see pages 7 and 8), here, and here.

We hope that this level of openness will help raise the bar on how people pursue intellectual property suits.

Let me insert the usual legal disclaimer: I’ve quoted our complaint, but beyond that, I won’t engage in any public comment on the technical details of our case while it is pending.

More Links

• Sun's CEO discusses the lawsuit.
• Sun Patent Team Demanded $36 Million From NetApp

Comments

[Joshua Konkle]

Looks great Dave! Your position is very well laid out. After listening to the call this morning, it seems that Sun was standing on your shoulders and forgot why they had such a good view of the answers.

It is interesting to read you have chosen Lufkin, TX (north of Houston and Southeast of Dallas, due East of Austin). IBM used that court district for the patent infringement case against Amazon, so follow NetApp and Sun would be there as well. (http://www-03.ibm.com/press/us/en/pressrelease/20481.wss)

It's great to understand the details; doesn't look like your upcoming engineering schedules will be affected by this case. Full steam ahead for Data OnTap and OnTap GX; (http://blogs.netapp.com/dave/2007/04/is_data_ontap_b.html)

JK

[joseph martins]

Hi Dave,

Is the second part of NetApp's suit retaliatory, or had NetApp planned to pursue legal action all along? This is the first I've heard of NetApp's intent to sue for WAFL infringement - in the 5-plus years since the inception of ZFS - despite the existence of NetApp patents dating back to the mid-90s. It is a fair question given the context and timing of NetApp's suit.

Even if NetApp demonstrates a legal basis, cynics such as myself might see this as a SCO-like attempt to, at the very least, hang a cloud of legal uncertainty over a competing technology in an attempt to stifle its adoption.

Certainly, a company is obligated to protect its IP. I simply found it interesting that NetApp took so long to respond.

-- joseph martins

--------------------------------------------------------------
You asked whether NetApp planned pursue legal action all along, independent of Sun’s action. I think the most accurate answer is that Sun goaded us into paying attention. In our 15 years of existence, we have only filed one other IP lawsuit, so it’s not like we have an aggressive track record, or teams of people standing by, ready to sue.

On the other hand, I won’t pretend that we would never have sued if Sun hadn’t approached us first. We focus on innovation as a company, and we do intend to defend our intellectual property.

-- Dave Hitz

[SS]

I always wondered, why has NetApp not done this all this while. Sun has been claiming the same thing on its official blogs (http://blogs.sun.com/val/date/20040909) and NetApp never took notice till now.

I believe this was longtime pending.

[Mark R. Hinkle]

In the event that NetApp wins it's case, what are your plans for asserting your patents. If I was a user of OpenSolaris and ZFS would NetApp's actions have repercussions for me? {I personally am not I am just trying to understand the potential consequences of the suite.}

-- Mark R. Hinkle

--------------------------------------------------------------
Our interest is on commercial use of ZFS. That is, we are concerned with companies who take our IP and turn it into products that they make money on. For obvious reasons, we are especially concerned about commercial use of our IP that would compete with NetApp.

We are not concerned with downloads of ZFS for personal or non-commercial use.

-- Dave Hitz

[Fazal Majid]

And to think I once actually liked NetApp as a company...

You can kiss my business good-bye. I am adding NetApp to my list of companies to shun, along with SCO and Sony. I am deleting any testimonials I ever put online for your products, and will contact your marketing department shortly to make sure they delete my reference for the S500.

-- Fazal Majid

--------------------------------------------------------------
I’m sorry you feel this way. I wonder if you could say more about why you are so upset? I am guessing that you disapprove of all patents, or at least disapprove of defending patents. Is that right, or is there something more specific that we’ve done?

My goal in this blog was to help people see that we have a legitimate claim to infringement, under the current rules, but if you disapprove of the entire patent system, then I do understand that there’s probably nothing I can say to make you feel better about an IP lawsuit.

-- Dave Hitz

Thank you for setting Sun straight. Every large tech company should realize that the software idea patent system as currently implemented is only good for "IP" protection rackets and retaliation and is not a magic money-creation device.

Hopefully it can all be settled with some cross licensing jiggery-pokery and will not trigger the inherent MAD tendencies of the current system.

If the dust settles, it might be nice to contribute some patents to the open-source patent pool.

Apart from a gesture of good will it will save the community the work of remembering when it was "invented" last time around, which is nearly inevitable for any form of software construct these days.

I appreciate your criticism of the current patent system. Unfortunately, as you say, it is what we have, and we have to work with it for now. So you might as well use it for setting straight those who try to abuse it.

[George Mitchell]

Dave, as a long time Linux user and a fan of ZFS, I just want to thank you for being so upfront about this. As much as I value ZFS and its capabilities, I recognize that you and your company apparently have a significant investment in one of the key technologies involved. I also realize that as much I you might like to contribute those technologies to open source, you, like all the rest of us, have wages and expenses to pay, not to mention having to feed your families. I only hope that for the sake of all of the rest of us who are looking for affordable access to emerging technologies, that you can somehow reach some sort of settlement that will result in a winning situation for all of the stakeholders. I know that finding such a solution is not an easy proposition, but I wish you the best as you pursue it. At this point the ball is apparently in Sun's court. Hopefully their approach is as reasonable and understanding as is yours. In any case, no way I would compare you guys with SCO. Thanks for the integrity and sensitivity, it IS appreciated. I wish you all the best!

[Razvan Vilt]

Hi Dave,

While I am a bit amazed by the turn of things, I cannot help but wonder when will this software patent craze end? Sadly, I cannot say that I've used WAFL, but I can say that I've used ZFS, and I was impressed. I've also looked at the patent application that you filled back in '94, and while I found it impressive, I do find it to be mostly theory, and rather close to algorithmic stuff. In general, when talking about file-systems, be them WALF, NTFS, ReiserFS or EXT4, I feel that you cannot actually talk about anything but the algorithms that were designed. The algorithms make a file-system revolutionary, and not necessarily the implementation, as that is only something of quality assurance.

From my understanding, limited as it is, of the patent system and its purpose, you cannot patent an algorithm, but you can patent an implementation.

Let me make myself clear. I am a university student in IT and Electrical Engineering, and I believe that half of what our professors teach over there is available only because it cannot be patented. A quarter of the cool stuff that we were taught in university until now, and that we plan to use in our engineering work in the future, is good for patenting if you follow the _BAD_ examples that Sun, IBM, Microsoft, Oracle, NetApp provide, thus completely useless in the academic world.

Patents might protect some businesses from more or less unfair competition, but they certainly, at this rate will hinder innovation, especially at the one spot where innovation shines: in the academic level.

What would be the purpose of having a course about COW file-system design, if all the work covered is patented by one company or the other? I can't imagine anyone actually being able to use any of that information without working for the company that owns the 'Intellectual Property', or licenses it.

I certainly hope that this whole NetApp - Sun collision course can be avoided. I admire Sun for Solaris and a lot of the software surrounding-it, and I admire Sun for being the first IT MegaCorp that actually had the guts to put their money where their mouth was. IBM talks about contributions, so does HP, but most of the contributions made by companies in the wonderful FLOSS world are made by Red Hat and Sun, not by Novell, not by HP, and not by IBM.

And NO, I don't think this as something that even remotely resembles the SCO/IBM thing. You at least put everything on the web, thus we can, and will judge for ourselves.

All the best,
Razvan

P.S.: I quoted the term IP because I find-it to be one of the most hypocritical terms possible. It really is the worst choice of words possible.
P.P.S.: What I wrote above doesn't mean that IBM, HP and Novell didn't contribute, it simply states that from my POV Red Hat & Sun contributed much more, both if you count the number of lines of code and documentation, if you count the number of man-hours, and if you also take into proportion the size of the company.

[Nobody Important]

I really have no idea about the patents in question or the alleged copying, I only came because of the mention of SCO.

I'd like to point out, however, that on the issue of software patents you shouldn't expect too much sympathy. I think that a significant number of people believe that such patents should not exist at all, and I am among those. After all, all real progress is made by building upon good ideas. What would you have done if trees were patented? And I thought that copy-on-write was patented, but that may have expired by now. Not to mention that you built upon other old ideas like inodes...

Still, if you're not going to go into crazy litigation with anyone who is running ZFS (I don't run it, although I've wanted to try it), I suppose that at least is a good thing so I suppose that I shall remain grateful even for small favors.

[Charles Duffy]

As a techie with strong OSS leanings, I'm a firm believer that intellectual property law should exist with the intent and purpose of furthering the interests of the public as a whole, as suggested by the segment of the US Constitution authorizing its existence. Indeed, while our chairman of the board disagrees with me vociferously on the subject, I'm of the belief that -- were it not for defensive needs -- the startup whose product I've spent the last five years working on would be at least as well off without our patent portfolio, keeping our focus on staying ahead of our competition on the basis of our ability to improve, deliver and support our product.

That said, I can appreciate where you're at (if we were approached as you were, we'd certainly be reaching for what portfolio we have and looking at what we could leverage into a favorable cross-licensing deal -- and taking an aggressive stance if that's what we thought necessary to best represent our interests). I hope that some end can be reached which is beneficial to the public as well as yourselves. I've been keeping a watchful eye on ZFS in the hopes that it would lead to a solution to some Big Problems for companies without the money to spend 'yall's hardware. (I hope to leave this latter category in the not-too-distant future -- though when it happens, any technology purchase decisions we make /will/ be filtered through knowledge of the public actions of those companies we consider tying ourselves to through those decisions).

Frankly, if there's one end that could come out of this that would be positive for all involved, it would be a cross-licensing deal with a stipulation that Sun prominently brand and advertise ZFS as based on NetAppliance technology. You get great marketing (and gobs of goodwill with the OSS community for not killing off a well-known project), and Sun gets to keep one of the major factors differentiating OpenSolaris from Linux, even if they can't continue to take all the credit.

As IBM has found, goodwill with the OSS community does indeed translate into sales -- and getting ZFS branded as based on NetAppliance technology under terms which leave it as a viable open source project with room for adoption by others will no doubt translate into goodwill.

[Matty]

Hi Dave,

As a long time Solaris and NetApp user, I am also bothered by the fact that NetApp would choose to sue Sun over their ZFS file system. Is there a reason you and Jonathon Shwartz couldn't sit down and hash out this issue? Being in a position to recommend hardware purchases at my employer, this will definitely change my willingness to purchase anything from NetApp in the future (just as it would if Sun was suing NetApp over an open source technology). I hope you will consider the needs of your customers and the open source movement during the litigation process.

- Matty

[TimC]

Disclaimer: I make my living off of netapp staying a very heathy company...

That being said, this seems a bit off to me. First, Sun claims they were seeking cross licensing... you claim they were seeking money. This seems EXTREMELY unlikely to me. Sun isn't exactly hurting for money, nor would they have any use of *millions* of dollars from netapp. I'm skeptical at best.

Second, you decided to file this in Lufkin Texas. Best known for having absolutely 0 understanding of patents, and a haven for patent trolls...

I'm sorry but your actions do not match your words. To me it appears you fear zfs, and rather than beat them technologically, you'd prefer to do it in a court room. Protecting your technology is important, but they didn't steal your code, and quite frankly I think it's a joke to try and corner a market through the courts.

[Adam Langley]

From reading the patent [1] you appear to have "patented" functional trees (the tree structures that appear in all functional languages).

You cannot believe that this is original, so all that's left is that the application of functional trees to a filesystem. I'm strongly suspect that a motivated researcher could find prior art for this and, if not, it's certainly not "non-obvious".

So this patent would appear to be another clear abuse of the patent system.

[1] http://www.google.com/patents?id=uecCAAAAEBAJ

[Jakub Sadowski]

As one of the "technical folks" you speak of, I will first say that I'm a big fan of Sun Microsystems since they are a technology company which sets the highest standard for technology ethics. They always create a fair playing field with all the platforms and standards they develop or participate in developing. It's unfortunate and somewhat shocking to hear that they're carelessly behaving as patent leeches. After reading your clarification of this case, Dave, I can't help but agree with your course of action - patent suit or no patent suit.

[Jimmy]

Seems to me Sun was playing tackle football, and NetApp decided to pull out a live grenade. The present rules may allow it, sure. However, using existing laws to make an unjust situation even more unjust, for more people, still seems horrid.

Sun's patent abuse is despicable, NetApp's patent abuse is despicable: both are in danger of coming out of this looking like bad guys.

I don't see how a company could in good faith participate in a reform effort while pursuing one of the worst possible abuses of a software patent that justify and show the need for the very reform -- hindering the creation of new software, by attempting to say a patent gives ownership over a fairly routine algorithm for operating on a certain structure.

It's mentioned NetApp is not concerned with downloads for personal or non-commercial use, so some users of Open Source are safe.

However, this is not very comforting -- this news about NetApps' actions still has immediate and serious repurcusions for 90% of OpenSolaris users. Many, perhaps most users of Open Source software utilize the software for some commercial purpose. For instance, people run their web site on a computer system, their e-mail/database/DNS server, etc may run Open Solaris box that happens to store its system files using ZFS. Are they to be pursued next?

If future versions of the OS were to stop supporting ZFS, it is still a serious threat.

These users would have a serious problem, if all their data is stored on a ZFS storage pool, they would lose all their data and file system layout of their working system, when they later need to upgrade their kernel, for security fixes, and that is extremely harmful...

Result: Noone can really safely decide to use ZFS until this is somehow settled, it's just too risky to leave your data to chance (that a future OS upgrade may make your volume layout and saved files no-longer viable).

[joseph martins]

Dave,

I appreciate your honest and frank response, thank you.

[Robert Loomans]

Is it just me or does it seem plausible that this is one factor in Sun deciding to release ZFS as open source?

Razvan Vilt: I believe that this is the whole problem with software patents: they *are* patents on algorithms and techniques... and many feel that this differs significantly from how patent-able other areas of invention are.

[Mike]

Maybe you should open source your software stack as well, so we can see what patents you are using without paying.

Stop spreading FUD like this. Sit down with Sun and sign a patent exchange letter.

[Ken Stox]

Dave:

I must commend you on the open fashion you seem to be approaching this problem. I hope the lawyers will allow you to continue to discuss this in an open process. I don't have enough information to agree or disagree with your stance, but bringing it into the light of day speaks well for your conviction.

[Tim Vernum]

Your football analogy simply doesn't fit.

Wielding a patent arsenal is not "wearing pads and helmets". It's training your players to bust the opponents knees.
If you used your patent portfolio to force a cross-licensing agreement, then that would be "pads and helmets", but this is clearly not.

Whether you consider it to be good business, or good ethics to sue Sun is none of my concern. But this is yet another software patent dispute, and to try and frame it as something else is simply dishonest.

[John]

Perhaps I'm wrong, but this looks much like a case of applying an existing technique to a different medium, without acquiring what would appear to a reasonable person as a non-trivial modification. If it is so, in my opinion it represents the claim of a significant difference between transmitting an electronic signal through a cable or through a wireless medium, such that modulation techniques remain the same. Copy-on-write is a well known technique, and its application is reasonably wide spread.

Genuinely hope for a reasonable resolution to this conflict.

[benr]

I greatly appreciate your openness Dave. While I understand the business aspects of the action, from a technical point of view a legal struggle between WAFL and ZFS, Sun and NetApp, isn't good for the storage community. Many of the issues patented are not unique to either WAFL or ZFS and are commonly taught to CS students these days.

I don't see any good coming to the customers of Sun or NetApp over this. To the share holders of the victor, perhaps, but not the storage community.

I hope that a Win-Win scenario is possible. Sun and NetApp share a special bond, always have and hopefully always will.

[Applicant]

I was set to interview with NetApp for an open position in a few weeks, but now I'm not. I'm a graduate of a top-ten computer science school with a very high GPA and an excellent resume.

So you know that this isn't open source zealotry: I'm interviewing with Microsoft--they haven't yet filed patent lawsuits.

I understand that you're in a difficult position. Sun was doing something that I perceive as underhanded, and you made the obvious move to defend yourself.

On the other hand, lots of people use ZFS, and it's now 'out there.' Suddenly undermining it is going to harm a lot of people, and you have done nothing to mitigate that. Implying that non-commercial use is okay doesn't really solve this problem: harming commercial users is also bad.

I despise the idea of collecting rents, and that's what you're doing here. You must make it clear that this is a conflict between NetApp and Sun that isn't going to harm users, and that isn't about collecting rent on ideas that other people easily could have had.

[patrick giagnocavo]

I can't see a positive outcome to this litigation, unless it is simply meant as a way to bring Sun to the table; or you are trying to get bought by a larger company.

Sun bought StorageTek, founded in 1969 - you mean to tell me that STK had no prior art in file systems when they have been shipping disks since the mid-70s? They had a virtual disk product with snapshots 4 years before you filed your patent.

Even if NetApp wins, they still lose - the loss of goodwill will far outweigh any monetary gain.

[psa]

Dave,
I'd also like to push the idea of you and Jonathan sitting down over ${favorite_drink} and talking this through.

You're both great companies with nothing to gain from this action.

[trasz]

IIRC the copy-on-write was first used in LFS, not WAFL.

[Ammar Zolkipli]

I must say that I'm quite sad that such events have happened. It's almost like seeing two close friends fighting each other over a small thing. Why can't we all just get along?

I am unfortunately on the fence on this one. I like both companies, as BOTH SUN and NTAP technology and achievements have influenced my educational and professional years. To some extent it does affect me personally that two of my 'technical cornerstones' are in a conflict.

[Winfried Neessen]

Anyhow I see you point of feeling "hurt" by SUN's lawyers I absolutely scorn the idea of lawsuits about software patents. Though you are mentioning that non-commercial users will not be hit- what about the commercial users?

Aren't the commercial users of ZFS, as well the users that are buying your Storage arrays, to combine the best technologies to get best efforts out of it? Aren't the commercial users, the users which are making your revenue grow?

I absolutelly don't think that this is the right way. Hopefully this will find a good end though.

[Serge Wroclawski]

The issue for many of us who see this as a very bad move on NetApp's part has little to do with the technical issues, and more to do with the way in which NetApp is handling the patent issue, which is repeated in your blog.

It is quite common for companies to have large patent portfolios and when products compete, to sign an agreement between the two parties to allow use of patents between them- a sort of treaty.

In your blog you say that your concern isn't personal or non-commercial use, but you neglected to talk about third party commercial use.

If NetApp doesn't want to be seen as a bad actor, then it should work with the various entities (the Freedom Law Center, for example) to have patent indemnity to all parties other than Sun over any patents in ZFS.

[Aidan Thornton]

I just discovered that there was a a very nice Linux filesystem called Tux2 that was abandoned due to Network Appliance's patents. Apparently, the author came up with the idea behind it and implemented it back in the late 1980's. He then decided to base a Linux filesystem on it a few years ago. After someone pointed out that it was similar to NetApp's patents he essentially dropped the project. This is why software patents don't work. (On the other hand, I can see why they'd want to patent it, and it looks like they have good reasons for suing Sun.)

[Leishirsute]

Dave,
Sun doesn't make a compelling distinction between WAFL and ZFS in this Q&A.

ZFS has always "smelled" like WAFL. The documents in the lawsuit really reinforce that.

[Leishirsute]

Oops. Here's the Q&A url
http://www.sun.com/emrkt/campaign_docs/expertexchange/knowledge/solaris_zfs_compat.html#8

[Harold]

Needless to say Sun has a rather different story about how this came about, and I'm certainly not going to automatically take your word on it.

Let's see what falls out when this gets the Groklaw treatment: while I'm sure PJ would have preferred a break now that SCO vs. The World is all but over, this case, which is described in ComputerWorld as "likely [to] become the major test case for open-source software this decade", will become a or the major focus of that community. I doubt you will enjoy that sunshine.

In the meanwhile, I don't think you have the slightest idea how much programmers UTTERLY despise the current use of the US patent system with software: it is an EXISTENTIAL threat to our calling and livelihood. You do us no favors by playing this game, and as already noted above, it will hurt you---I would no sooner associate with a NetApp programmer than I would one working for the [fill in the blank with your preferred odious organization].

Does anyone care to take bets on whether NetApp will by the middle of the next decade be staked out on a barren desert plain next to SCO, a stark object lesson to others who are tempted to compete in the courtroom instead of the marketplace?

[jb]

see jonathan schwartz's reply to this here:

http://blogs.sun.com/jonathan/entry/on_patent_trolling

[Kevin]

That it has taken NetApp this long, given the (apparently) flagrant examples is a bit odd. Was the goal to let Sun get far enough along with FISH to ensure an encumbered ZFS would be particularly expensive?

[TM]

Fazal Majid wrote, "And to think I once actually liked NetApp as a company...
You can kiss my business good-bye. I am adding NetApp to my list of companies to shun, along with SCO and Sony. I am deleting any testimonials I ever put online for your products, and will contact your marketing department shortly to make sure they delete my reference for the S500...."

Interestingly, back in December of 2006, Mazal had this to say about ZFS: "It's mostly a straight rip-off of NetApp's WAFL, but that's a good thing. I run ZFS on my home Solaris/x86 server already...." (http://sayspy.blogspot.com/2006/12/looks-like-zfs-might-be-coming-to-os-x.html)

I guess one could hardly expect a positive response from someone who views using a product that is a "straight rip-off" of another as being "a good thing".....

[bk]

After reading both blogs (yours and Jonathan's) it is clear there won't be a winner. The PR is going to hurt both sides, but as the details are being revealed, its clear that Net Apps is desperate. It all started because Sun bought Storage Tek before Net Apps could, so then you couldn't buy/own their patents. Now Sun won't sell them. But you make it sound like Sun came after you, however its more along the lines that you knew that Net Apps had used the patents but didn't want to pay license fees, so instead you'll try to sue it out of them. And the idea of suing for copy-on-write is like suing for using hash tables. Its been around forever and as TimC stated, I'm sure it will be easy to find prior works.

So unfortunately, this is going to stifle progress in the storage technical arena until the lawyers make their millions.

[JohnQ]

I'm not jumping to any conclusions until more information is available, but at first blush this seems little more than an attempt by NetApp to spread FUD against Sun/ZFS.

It is no secret that Sun's "Thumper" box utilizing ZFS is a direct and significant threat to the high-priced status quo storage vendors like NetApp, EMC, etc. Perhaps NetApp feels the best "competitive" strategy to counter the (real or imagined) threat to their FY08 sales projections is to neutralize ZFS with the spectre of a patent lawsuit. While the technical details may be different, this smells like "SCO vs. The World" rev. 2.0 to me.

As an aside, if those evil Sun engineers really were stealing NetApp IP while developing ZFS, why the numerous acknowlegements in their design docs that some of the concepts in ZFS are similar to WAFL? Why draw unnecesary attention to the the IP you were supposedly trying to rip-off?

[Rene]

I don't see how this can possibly have a positive outcome for NetApp or Sun or their customers no matter who "wins" the case. You say that you're not worried about business people potentially looking at this move negatively given NetApp's growth prospects, but how can it possibly help those very same prospects if you've now alienated so many technical people who feel so strongly against such patent trolling?

I would think a smart business person as a potential or existing customer would understand that it's all those technical people out there that tinker and gain experience with new technologies from their own interest whose worthy elements make their way back to business people as recommendations and solutions to regular business problems. If you've conceded that the technical community is not likely to see this act positively--and you'd be correct--then you've just shut the door on a large number of prospective buyers of your products, haven't you? You must have extreme confidence in your sales force and their C-level contacts since you will now have to rely on them so much more now.

You say: "[This lawsuit] is about what Sun is doing." You've just now educated a lot of your customers about what Sun "is doing" in the marketplace. And as a result they might now take a closer look at Sun's Solaris ZFS and Thumper storage/compute products. Again, how does this suit positively affect the long-term growth prospects of NetApp?

[Mark Buckingham]

From a first reading, this seems like a 'sniping" contest, where one entity says you've been using my stuff, so it's about time you gave me some money. And, the other side saying "no, I'm not, but since you swung at me, I'm going to try and swing at you. Quite childish, if you ask me. We're more civilized than that, aren't we? I'm a firm believer that you don't need to screw the other party over to make money, in this world(although, that wasn't always the case), and I have built my reputation on integrity. Integrity works! This "open" buzz stuff is fun, but in reality, or in business, anyways, it's not always the best choice, unless you want to use it as your charitable side. Sorry, to put off you open sourcers. Some people claim that open source is the sole cause of innovation, but when it comes down to it, it's capitalism. Why would I want to come up with something or work on something that innovates, if I don't stand to make some money off of it...I'm not that much of a sucker. I think Jonathan preaches to the choir a little too much on the "open" thing, personally. In reality, myself as a business guy(and CEO) don't mind paying money for software, if you can show me how it's going to make me money or increase my efficiency. In other words, I'm not a freegan or freeloader, just a no-nonsense businessman(and ocasional programmer:)). The solution to this mess? If I was Dave, I would matter-of-factly, lay down that ZFS uses WAFL technology. I won that technology, please stop using it, or pay me some money. I'm not going to gouge you, or rip you off, or claim that you are ripping me off, just making money from something that I own, while at the same time making sure you make money for what you are paying me for. I think that's the intent of Dave, anyways, by not going after non-commercial users. If you are making money off something that you are using for free, then you should at least toss a token payment for the creator of what you are using. That's just one programmer to another. Failing this, THEN this is when I would go the court method, only after exhausting all other options. The court system should not be used as a tit-for-tat playground. Also, I would ask Jonathan to please explain how we were using what Sun considers their property. If I could honestly, in my herat, say that this was not true, then I would not feel that I owed Sun any money, but if I was using their property, then, well you know. Integrity! It doesn't matter if you CAN get away with something, it's whether you try to get away with something. That's called class. That's why I choose Sun, because they are a class act. Is Netapp a class act?...~Mark~

I'm a big fan of ZFS, but I see your all's point.

There's no chance of confusing you all with SCO, since you all have actually described your allegation. It seems like an effective way to call Sun's patent-portfolio bluff, too.

Hopefully I'll still get to use ZFS when the dust settles -- I can't afford NetApp's hardware, so an OS-based solution makes my life easier.

[ZFS user]

ZFS has been added to the FreeBSD tree, and was in the last 7.0 snapshot. It was hoped that it would be in 7.0-RELEASE, but FreeBSD is very conservative and I bet they are already laying plans to excise infringing code. As an early user of 7.0 and ZFS, I'd sure appreciate it if special permission could be explicitly granted to FreeBSD, pending final outcomes.

[Zoltan Farkass]

Bad move by chosing litigation. Netapp will not gain anything positive out of it, only some bad publicity.

Sun has a good plan that will pay out well in the future. They grant patent use rights to all their open source software. Their technology is easy to evaluate increasing adoption. Companies really need to understand the power of open source. Why I have never heard of WAFL? Why do I use ZFS every day ? Why do I recomend solaris ZFS? I can only recomend Sun technology.

Ben Franklin's stance on patents comes to my mind:

"as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously"

STOP THIS PATENT NONSENSE!

[Charles Duffy]

That it has taken NetApp this long, given the (apparently) flagrant examples is a bit odd. Was the goal to let Sun get far enough along with FISH to ensure an encumbered ZFS would be particularly expensive? -- Kevin

If that can be shown to be true, it provides Sun with a possible defense -- one of those which was effective in putting down the Lemelson patents.

[fsguy]

Daniel Phillips planned to create Tux2 Filesystem but had to abandon due to wafl patents. This is what he had to say when someone initially pointed to him about WAFL patents.
http://lwn.net/2000/1005/a/tux2-patents.php3

And this is what happened later on to Tux2.
http://lists.oxlug.org/pipermail/oxlug-announce/2003/000198.html

Daniel says he had come up with copy-on-write
, phase tree techniques and implemented a database in 1989 (4yrs prior to WAFL patent).
But wondering what had come up later on that forced him to abandon tux2 project?.

[Steve]

Dave, I think you are absolutely doing the right thing. Instead of bickering for years over who has the rights to what IP and who should pay what to the other, get a 3rd party (judge) to decide it in a legal and fair way. As a result both parties can move on to doing more important things, and the lawyers can cash their final checks. I'm amused that people are of the attitude that all software developments should be put out as freeware. This would destroy the business value of, and probably the compensation packages of those very same programmers. It sounds like it could have been put to bed without the courts had Sun decided to engage you most recently in a reasonable way. I worked with you for years and can certainly vouch for your good character.

[Travis Rogers]

Dave,

you mentioned that Netapp has previously only filed one IP suit. I take it Netapp prevailed in that suit, as it expects to prevail in this one?

[Steve Jobs]

Can anything good come from Lufkin, TX?
http://www.techdirt.com/articles/20060203/0332207.shtml

[mjkerpan]

Kind of sad. While you may have some valid points in your claim, I feel that it's wrong to attack a FOSS project like this. Yu could lessen the bad feeling by releasing your own software as GPL. That would instantly give you a marketshare advantage as your filesystem could be used in Linux, which has a rather larger marketshare than Solaris and would get your name out there.

[Alice Poundstone]

This is a very sad day for me, Dave. I have been a loyal Net App customer and evangelist for years. I've also been a loyal driver of open source technology, and a growing fan of ZFS. At this point, you leave me no choice but to have your company removed from approved vendor status at my company, at least until you give up your trolling activity. I want to love you guys, but you look exactly like SCO right now. I am starting a boycott.

[Keith Jolley]

So what are you going to do if you win? What are you going to do if you lose? As a customer of both you and Sun this seems a no-win situation because my money is being diverted from engineering to legal at both companies.

[shaun]

I hope Sun gets what they deserve. Show no mercy.

[Deron]

Dave,

Yours and Jonathan's version of this don't jive at all. And since you filed in East Texas, your version is the one that everyone will question.

If you win, you still lose having taken this path. Those of us that make purchasing recommendations & choices will certainly see to that.

[Travis Rogers]

I see Netapp prevail in a previous patent infringement suit:

(Techworld.com) 13/12/2006

BlueArc has won a legal fight against NetApp, a leading NAS product supplier and HDS competitor, in which NetApp accused it of patent infringement. This legal case dismissal may have cleared the way for the HDS OEM deal.

The legal case:

The United States Court of Appeals for the Federal Circuit has affirmed a lower court's decision to dismiss the patent infringement lawsuit filed against NDS by NetApp. The case started in August 2003, when NetApp filed a patent infringement case against BlueArc derived from NetApp's July 2003 acquisition of Auspex' patent portfolio, following the Auspex bankruptcy.

BlueArc's hardware architecture was found by the court not to have infringed any valid claim of the asserted patents.

[Average Joe]

To those who have posted on this blog and have stated that they will "boycott" or "refuse to purchase" Netapp kit for their companies' needs because of this issue, you should be fired. It is just plain dumb to make a business/technical decision based on what you have read so far regarding this case.

While a person who is is entrusted with making the correct decision in purchasing and deploying technology within their organization should be dealing with an aboveboard and trustworthy vendor, there is just not enough information here for anyone to come to such a rash decision. Bottom line is that Netapp still has one of the best enterprise NAS solutions out there and they are not guilty of anything legally. Dismiss them because their products are inferior to something you have tested from someone else. Not because of incomplete information posted on blogs.

It really amuses me that there might be people out there in decision making positions that are this stupid. As for the recent college grad with a high gpa and excellent resume, I'm sure the HR people at Netapp would gladly take someone less polished but with better business sense. Good luck to you...

[EK]

Kick then where it hurts Dave. They deserve it. ZFS is a BLATANT attempt to plagiarize WAFL. In fact they should call it PFS as in Plagiarized File System.

SUN's arrogance and stupidity is beyond belief

[Harold]

Average Joe: "Bottom line is that Netapp still has one of the best enterprise NAS solutions out there...."

But they're now competing in the courtroom instead of marketplace (well, in addition to, but this will be a BIG high level distraction), is that place on the roost going to stay true forever? Is this not frequently a sign that a company's fundamentals are going south?

History does not have good things to say about companies that moved their focus from the marketplace.

As for the job candidate they just lost, well, just how many of the best can they lose? How many will follow his path, especially as the case gets more publicity? Let me assure you, MIT EECS graduates (a department I have some ties to) have their pick of companies now that the worst of the dot.bomb crash is over.

The game has *just* started; if I read NetApp correctly, they aren't interested in a settlement, but in terminating ZFS with extreme prejudice, and that means it could drag out for years, like SCO vs. The World, unless they get a classic preliminarily injunction based claims of patent infringement---and that changes the game, certainly the moral calculus and opinions of every ZFS user out there.

We aren't likely to buy any $$$ NetApp filers in response....

[George William Herbert]

I am pretty sure there was prior art to the tree structure filesystem stuff before WAFL. I hadn't thought that was the really innovative thing about it at the time. Trees and copy-on-write were widely used in research filesystems, and one of the various tree structures' inventors' was the father of one of my close friends, and I think that filesystem structures were always in context in discussing those back into the 60s and early 70s (though they mostly were applied to in-memory structures).

I vaguely and possibly inaccurately recall mention of something like the WAFL mechanism in an early (late 80s) version of Hans Reiser's design / concepts working paper, but I could be remembering wrong.

I always assumed that everyones' patents in this arena were defensive and fundamentally unenforcable for attack purposes.

You and Schwartz seem to be making incompatible claims regarding the legal / licensing maneuvers that led up to this. That said, both sides in this seem to me to be severely vulnerable to prior art, and if you both piss off the open source community enough all the examples will be dug up. Going on the offensive at all over this seems like a really bad business choice, even if you were attempting to defensively preempt a perceived impending Sun lawsuit.

Are you planning to give up NFS for the duration of the legal battling? I know they pretty much just gave it away, but something seems wrong about suing them over FS stuff when most of the data your corporate devices export worldwide seems to be via their 23-year-old protocol or its descendants.

[VMM]

Hi Dave,

I own a small software company, attempting to build products in storage domain; your blog has always been an inspiration and a very good guide on where the industry is heading.

I am a bit concerned by the way such lawsuits are being used. Have they become a money making instrument by the large companies? Would they act as a deterrent and subsequently kill attempt of innovation.

[mag]

Even business people are right on this: this is the beginning of the end of your company. Nice form of suicide, congrats. And thank you for your joint effort with sun to invalidate a bunch of meaningless patents.

[TM]

Lots of fans cried foul when Metallica sued Napster for giving away their music for free. "Oh, we'll never go to another Metallica concert..." blah blah blah....

People like free stuff and people get really upset when stuff they were used to getting for free is no longer free (regardless of whether they deserved to get it for free in the first place).

Remove the emotion.

There's not a person commenting on this blog that wouldn't fight to protect against the theft of their property. If I own something (or even if I *think* I own something) - you can't take it unless I say so. And if you try, we're going to have a problem. Period.

There is a process in place to determine which side is right. Cool out and let the process work.

And oh by the way, it was usually the Madonna fans threatening to boycott Metallica, which I'm sure really worried them. And it seems to me that now all of the Sun bigots are now threatening to boycott NetApp. BFD.

Metallica survived [and you can still steal their music via Limewire if you want] and so will NetApp (and Sun too).

[Geoff Ongley]

Hi Dave,

I'm a strong supporter of Sun, and the ZFS file system, along with any other innovative technologies that both Sun and other people/companies are coming out with.

Don't get me wrong, I'm sure WAFL is a great filesystem, and NetApp has some other great technologies too, but I don't think that should mean others should be held back from doing something even better as time marches on, with some similar ideas and some new and innovative ideas on how to do things. Thats how we grow and develop as an industry, and in the end, this is good for everyone, because technology continues to improve.

My issue with this kind of lawsuit, like many other patent lawsuits, is that they often hold back Computer Science and innovation, which is bad for the industry as a whole.

This kind of thing can (and often is designed to) stall development and activity on some stuff which is really cool and innovative. As such, I find it rather disappointing that you've chosen this path over other means to resolve your differences.

Is NetApp about us building better systems, working with healthy competition, and innovating with technology rather than hindering it? Or is it just about getting some more cash and slowing down the development of its competitors?

What ever happened to people in IT caring about the greater good of Computer Science, rather than how fat their wallets were?

I hope that you don't manage to stop ZFS or any other great technologies in the commercial or non commercial world, because in the end thats a loss for everyone.

[David Hopwood]

[Posted to both blogs.]

As others have pointed out, the main ideas behind copy-on-write and always-consistent-on-disk filesystems, such as WOFS, LSF, and Tux2, clearly predate both WAFL and ZFS. The "Primäre Superblock" in WOFS, for example, plays the same role as the "root node" in WAFL or the "überblock" in ZFS. Most of the other claims described in the patents are trivial applications of general-purpose data structures to filesystems. So none of the 10 patents involved in this dispute should ever have been granted.

(Even to the minority of the technical community who think that software patents should be reformed rather than scrapped entirely, these particular patents are not defensible.)

Both companies are trying to spin the history of this patent dispute in their favour, as you'd perhaps expect. But if you dig a bit deeper, it's worse than that -- there are inconsistencies in each story indicating that one or both must be untruthful, and my impression is that it's both. In NetApp's case, they make a cynical attempt to claim opposition to software patents despite having form in using them offensively (e.g. against BlueArc). In Sun's case, trying to extort ~$36.5M out of NetApp for the StorageTek patents (see http://www.netapp.com/go/Sun%20Lawyer%20Email.pdf) is very far from "not demanding anything". Neither company comes out with any credit, and regardless of the legal outcomes, both deserve to lose from this affair in the court of public opinion.

[solaris]

Netapps is throwing the turd in the punchbowl, everything open systems is stolen from mainframe anyway. Everyone should have to pay IBM if you want to know the truth. Its all BS, and not unlike patenting a method to turn on a faucet. I think Netapp is afraid of Sun, and ultimately realize their days of selling toys are numbered.

[Robin Harris]

Dave,

While I don't think the suit is the smartest thing NetApp has ever done, I think it will have salutary effects in teasing out the implications of the KSR decision.

I comment at greater length on StorageMojo, but here's my takeaway:

"It will take years for new case law based on KSR to develop, but I’m optimistic that when the dust settles we’ll have a system that rewards the hard work of unique invention while protecting an engineer’s right to use existing ideas to solve hard problems."

Cheers,

Robin

[Mike Schwager]

It's interesting that you bring up patent 5,819,292 especially in light of this: http://uwsg.iu.edu/hypermail/linux/kernel/0010.0/0343.html . Indeed you mention "We hope that this level of openness will help raise the bar on how people pursue intellectual property suits." I couldn't agree more. But for your sake, I hope you're not SCOing yourself.
-Mike Schwager

[General]

All I can say is BOO!

Any result in this case is lose-lose-lose for NetApp, Sun and the community.

How about being more creative and innovative and looking to incorporate some of the good stuff that was open sourced with ZFS. This would be a win-win-win. It would help NetApp software, Give ZFS some cred, and it would help the open source community.

I guess you guys at NetApp just aren't very creative.. That's sad.

The only possible winners? The lawyers.. BOO!

[Anon]

For too long Netappians called EMC the Evil Machine Company. Now one has to wonder who really is the Evil Machine Company - EMC or NTAP? hmmm....

[DragnLord]

My opinions on this matter:

SUN messed up horribly by attacking NetApp, a company whose product they used to make a product of their own. Sheer stupidity on SUN's part in my view.

I sincerely hope you win, as it may cause SUN, and OTHER large software companies out there, to rethink attacking companies/organizations from which they have taken ideas and turned them into "their own" products.

I think it's hilarious that people are calling Solaris a "free operating system". To see how "free" Solaris is, modify the code and try to distribute it for profit (as they USED to do with Solaris).
Solaris may be "freeware" (doesn't cost you download it and use it), but you are not free to modify and distribute for profit. Read section 5 from here:
http://www.sun.com/software/solaris/licensing/sla.xml

Section 5b (at time of this post):
"You may make a single archival copy of Software, but otherwise may not copy, modify, or distribute Software."

(Apologies for my digression.)

[NoLongerACustomer]

Attacking an Open Source project with patent claims: -10.

Claiming atomic tree changes are yours alone: -10.

Yeah, you're off the list for new projects.

[Joel Coopersmith]

After reading both sides of this argument, I decided to purchase EMC gear INSTEAD of Netapp because of this IP suit. You and your company should have learned from SCO and a (now mostly gone) list of others who have went down this road. Adding chaos and uncertainty to existing infrasturcture owners does nothing but sour architects to your product line.

For all those people who claim that Sun is attacking Netapp need only to look at the NFS protocol and how Netapp begain. Was there ever an IP suit from Sun over NFS? No. Why would they?

I wish you NO luck with this pointless IP suit.

Never a customer again.

[Anon]

Wasn't NetApp sued in the 1990s by Auspex shortly after NetApp was formed for using file sysem intellectual property that you took with you to NetApp ?

If I recall correctly the lawsuit was settled when NetApp paid damages, or is that incorrect ?

[Mike S]

Didn't NetApp rip all its IP off from Auspex ? They just werent smart enough to sue and paid the price by going under.

[Tobie]

@ DragnLord

Your statement is wrong.
Solaris has been freed through the release of OpenSolaris.

Have you read the OpenSolaris license? You'll find it to be quite different, and much more free than the SLA of Solaris.

[mortenb]

Please spend your money innovate don't advocate.

Actually Netapp was based upon making high performance easy to manage nfs servers. nfs was developed by SUN.

Can't wait for zfs to appear in the major linux distributions.

[Actions speak much louder than words...]

I don't know the details of the patents filed and who is right or wrong, however, the simple point is your actions don't match your sentiment.

You chose Lufkin, Texas to file! That's a huge slap in face to your customers, employees and partners, all of whom should be now wondering, what does this company and their executives stand for?

This place is known for patent trolls, so if your intentions are pure, then why would you go anywhere near it?

I was thinking about working at NetApp, but after this stunt, there is no way that I'd touch you guys with a 10ft pole as an employee, customer or partner.

[wvhillbilly]

How much better would it be if companies could co-operate to make a better product that both could sell, instead of trying to bomb each other back to the stone age with patents? Spending hard earned money on development and innovation rather than diverting $millions to litigation that ultimately benefits no one but patent lawyers, and causes massive ill will that leaves a bad taste in everyone's mouth? Come on, guys, both of you. Instead of trying to tear each other to pieces, try to find some common ground, come to an agreement, bury the hatchets and get on with life and business.

[John Stoker]

I was around in the early 90's when Digital Equipment Corporation also brought out its copy on write file system known as Spiralog. I think you are not the original inventors of the technology, not to mention abusing an abusive system of patents rather than trying to solve anything. I hope when they are done with you there is only a smoking hole in the ground as a warning for others.

[Bill Todd]

Wow, John: you think that just because DEC released a copy-on-write product (by the way, it was not a file system but a block-storage system: good old careful-update ODS-II and RMS continued to run essentially unchanged on top of it) at around the same time NetApp did, that means their patents can't be valid.

God must really love the ignorant and arrogant: he made so many of you. I've been ignoring this thread since it degenerated into pure babble, but given the specifics of your allegation decided to step in again. If you want more specifics, you'll have to seek them elsewhere in Dave's blog: it wouldn't be reasonable to post multiple copies just to save you the effort of doing the research you should have done *before* shooting off your mouth.

- bill