Sun Patent Team Demanded $36 Million From NetApp

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 actually NetApp, without the ‘s’, but I didn’t want to edit his quote.) 

He says Sun never “demanded anything”, but here is an e-mail from Sun’s lawyers doing exactly that. Legal language can be tricky to understand, but the translation of Sun’s letter is “You infringe our patents, so pay us $36 million.”

The part about “mapping claims onto NetApp products” is the legal way of saying “you infringe our patents”. The statement that NetApp apparently believes “the best defense is a good offense” indicates that we had something to defend against. Indeed. The phrase, “over a year and a half ago,” shows that the attack had been going on for a long time, both from StorageTek prior to the acquisition, and continuing at Sun long after the acquisition. 

It’s true that Sun lowered its price as the implications of our WAFL patents began to sink in, but it amazes me that Jonathan would simply deny that Sun ever demanded anything, and would imply (in the name of his URL) that NetApp is somehow the patent troll here.

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

Comments

[Dave Hitz]

Some of the comments on my previous blog made me realize how difficult legal letters can be to understand, so I put more effort into "translating" it into English.

[JohnQ]

Dave-

The language in Sun'e email was not difficult to understand, and your "translation" seems little more than another attempt to spin things in your (NetApp's) favor.

My question still stands:

What specifc patents was NetApp originally attempting to buy from StorageTek, and why?

It was NetApp's original attempt to purchase the patents that prompted Sun to reply with (to paraphrase) "no, you can't buy the patents 'cause they're not for sale, but since you are obviously already using them in NetApp products we requilre that you license them for $36 million"

You seem intent on trying to paint this picture of poor, innocent NetApp minding its own business when all of a sudden, without warning, big bad Sun comes crashing through the door demanding $36 million.

NetApp intiated this whole chain of events by attempting to buy these patents from StorageTek in the first place. I'm not saying Sun is without fault, but trying to play the innocent victim card here is just not cutting it....

So again Dave, what StorageTek patents was NetApp attempting to purchase, and why? They were obviously strategically important to your company or else you wouldn't have tried to buy them outright.

So waddaya say Dave? Why not tell your customers the _whole_ story, instead of just the bits and pieces that make you look good and Sun look evil?

And just to keep all this in perspective, exactly who is suing who? Seems like NetApp is the one threatening (and following through with) legal action. To date Sun has not threatend or intiated ANY legal action against NetAPP. All you've got is a letter from Sun asking you to come to the table to discuss the issue.

In the evil patent troll sweepstakes, so far it's NetApp: 1, Sun: 0

-- JohnQ

--------------------------------------------------------------
You paraphrase Sun’s letter like this: “… since you are obviously already using [our patents] in NetApp products, we require that you license them for $36 million.”

My dictionary lists “require” as a synonym for “demand”, so I think we both interpret the letter as Sun demanding (or requiring) that NetApp pay $36 million.

My frustration with Jonathan’s blog is that he simply denied the truth! This is a demand letter from Sun’s lawyers to NetApp, and he denied having ever demanded anything. Of course he can share his point of view, but why not stick to the truth?

I won’t debate every detail of our case in public (that’s what the courtroom is for), but I’m happy that we could find some agreement.

-- Dave Hitz

[David Hopwood]

Make that NetApp: at least 2 (the other is BlueArc), Sun: at least 1 (Azul Systems), that I know of. Sun also sued Microsoft for patent infringement over Java, but there were other complications in that case.

[solaris]

lets see, Sun gave the world NFS, XDR(the catalyst for NDMP), Java, etc....not to mention simply the best hardware and OS( not to mention the most secure) in the world.

What has Netapp contributed?

Sun realized, via the embracement of open source, a company-run team of programmers cannot out-think the world, maybe the masses aren't as experienced, but they have good ideas. The ones that pass the muster get incorporated into supported software. WE, ALL!! move forward and customers see immediate benefits.

Nobody wants to admit it, but software will all be free in ten years.

The software sales channel will die just like the aluminum siding salesman, its all about designing, implementing, and supporting.

who can deliver the "promise" the best?

[Meredith Poundstone]

Your intepretation of that letter is moronic - and in no way justifies filing patent litigation in Texas! You just make yourself look like a troll. I'm afraid I'm with most of your other readers - I'm removing you from the list of vendors I deal with, and starting to look far harder at Sun and ZFS. I'm very disappointed in you guys.

[max]

I'm going to be covering a lot here, but let's start with Mr. Q.

Johnq:

"What specifc patents was NetApp originally attempting to buy from StorageTek, and why? "

Not saying it didn't happen, or that it's not a routine part of business, but the whole "Buy Patents from StorageTek" Has actually yet to have been proven. The only person stating this happened has not done so in a court filing, only on a blog.

"Seems like NetApp is the one threatening (and following through with) legal action."

Pardon my French, but boo-fscking-hoo.

Obviously NetApp wasn't the first to "threaten" legal action, my guess is they called Sun's bluff and raised them $20. What would *you* do if you were getting squeezed by a much larger competitor with a track record of being at the least tone deaf, and at the worst a patent troll themselves.

Dave Hopwood:

"Sun gave the world NFS, XDR(the catalyst for NDMP), Java, etc....not to mention simply the best hardware and OS( not to mention the most secure) in the world."

As a longtime Solaris user, I say hogwash.

Having a telnet vulnerability (Solaris 10) in a modern operating system kinda steals your most "secure OS in the world thunder."

Sun's NFS was not very good, It wasn't until it was standardized that Companies like NetApp could spend cycles writing implementations that were high performance. If NFS wasn't released as a standard, Linux would have never adopted it, and something better like AFS would be your defacto Unix file sharing protocol.

Sun has never been a storage "innovator". They rent out Hitachi at the high end, and they've always relied on other folks to do the heavy lifting in the File System department (veritas etc.)

I would suggest everyone lay off the Sun kool-aid for 5 minutes and discuss the issues instead of sniping on irrelevant topics like the court venue, how dreamy Schwartz is, or to try to interpret Sun's letter as anything but a threat.

[Anonymous Employee]

I'm a Net App employee, and I'm disgusted by my own company's leadership. Patents are for people too afraid to compete on innovation, and your explanations of our actions are totally condescending.

-- Anonymous Employee

--------------------------------------------------------------
I’m sorry you feel that way.

If you'd like to chat, either anonymously by e-mail, or in person, you know how to reach me.

-- Dave Hitz

[max]

'm a Net App employee, and I'm disgusted by my own company's leadership. Patents are for people too afraid to compete on innovation, and your explanations of our actions are totally condescending.

It's "teh suck" for sure, but imagine how the Azul employees felt...

http://www.networkworld.com/weblogs/datacenter/011521.html

[mathrock]

Regarding the Azul legal case, the General Counsel from Sun posted a blog, back in June 2007, about litigation and intellectual property using the Azul case as an example. The post seems extremely poignant given the current NetApp/Sun trouble.

http://blogs.sun.com/dillon/entry/on_litigation_azul

[max]

I tend to view this as the Azul case in reverse.

Sun could not have developed ZFS fast enough without borrowing heavily from someone else's trade secrets.

Not suggesting he's evil or anything (Far from it) but didn't this ZFS developer:

http://blogs.sun.com/ahrens/

Intern with NetApp and work on WAFL related technology?

[Rich Dworsky]

I’m sorry you feel that way.

If you'd like to chat, either anonymously by e-mail, or in person, you know how to reach me.

-- Dave Hitz

Re: the above?

why, so he/she can find himself having a one sided conversation with Netapp legal and HR?

I hate to break it to you Dave, but Netapp ain't Oz anymore, hasn't been for looong time and has quite a well earned reputation for its often mean and petty treatment of employees, internal politics, and classic legacy player treatment of customers.

[Jody]

Why Lufkin? Why not contact Jonathan directly before releasing the lawyers?

[JohnQ]

Dave Hitz wrote:

--------
"My dictionary lists “require” as a synonym for “demand”, so I think we both interpret the letter as Sun demanding (or requiring) that NetApp pay $36 million.
========

Yes, but "demand" sounds so much nastier and evil doesn't it? Especially when you use it as the sensationalized title of your blog entry.

To make a silly (but acccurate) anaology: suppose I go to McDonald's and order a BigMac and the kid behind the counter says "that'll be $3.50" Do I run to my blog and post:

= MCDONALD'S EMPLOYEE *DEMANDS* ALMOST $4.00 FOR A BIG MAC!! =

Factually, that's true. But we all can see it as sensationalized, out-of-context, and self-serving.

And while we're dabbling in semantics and playing word games, Jonathan's response stated:

"Sun did not approach NetApps about licensing any of Sun's patents and never filed complaints against NetApps or demanded anything."

Fact: Sun did not *approach* NetApp. They simply *responded* to your attempted patent purchase.

Fact: Sun never *filed* complaints against NetApp.

And depending on what dictionary you use ,

Fact: Sun did not *demand* anything, they *requested* it :-)

Yes, the above is a petty and ridiculously literal interpretation of specific words, but hey that's the game NetApp (and Sun) appear to be playing.

----
My frustration with Jonathan’s blog is that he simply denied the truth!
----

Umm. No, he didn't. At least not according to my dictionary :-) (see, aren't word games fun!)

---------
This is a demand letter from Sun’s lawyers to NetApp, and he denied having ever demanded anything.
--------

An outside observer (like myself) could just as easily see it as a letter in response to NetApp's ongoing pursuit of buying several STK patents, where Sun is indicating that the cost of licensing said patents is $34mil.

-------
I won’t debate every detail of our case in public (that’s what the courtroom is for)
-------

Right. But you have no problem choosing sensational (and arguably misleading) language in your blog postings, and taking a single email OUT OF CONTEXT and waving it around as incontrovertible proof that Sun is an evil, lying bully out to harm poor, innocent NetApp.

I'm not trying to pick a fight with you Dave, but you HAVE to see how your last 3 blog entries come across as a thinly-veiled PR smear campaign trying to drum up sympathy for your company. You seem to be going out of your way to paint a picture of a pure, innocent NetApp valiantly trying to defend itself against the greedy, arrogant, and (wait for it...) DEMANDING Sun Microsytems Patent Gestapo.

Reading all the angry posts from your customers on this blog, it's painfully obvious that nobody' is buying this partiular line of b.s.

The facts remain unchanged, no matter how creatively you spin and dance to gain favor in the court of public opinion:

1. NetApp initiated an attempt to gain ownership of several STK patents. (Still no insight from your company as to what those juicy little patents were...hmmm)

2. Sun responded with their "requirements" for licensing those patents. (from my dictionary, not yours)

3. NetApp responded by filing a patent infringement suit against Sun - in East Texas , a district infamous for handing down favorable rulings to patent trolls.

Don't you see how ignoring fact #1 while simultaneously trying to spin fact #2 as an unprovoked attack by Sun might come across as a little..um...sleazy? Did you think no one would see through the PR spin here?

And then add in the East Texas factor and things really start looking bad.

I think NetApp really has to reconsider what possible gains might come out of this vs. the obvious negative customer backlash you are already attracting.

[Richard]

Dave,
This is going to be more about open software than ZFS related patents.
You & your lawyers may want to do some more reading on

http://uwsg.iu.edu/hypermail/linux/kernel/0010.0/0343.html

... and stop taking a cynical advantage of a very sick US patent system.

It is morally correct to withdraw, before it is too late.

[max]

JohnQ

"1. NetApp initiated an attempt to gain ownership of several STK patents. (Still no insight from your company as to what those juicy little patents were...hmmm)"

This accusation has only been made by Schwartz, and if you read Robin Harris' blog (storagemojo.com), probably not exactly 100% true. Note that he doesn't necessarily support NetApp's claims etiher.

"2. Sun responded with their "requirements" for licensing those patents. (from my dictionary, not yours)"

See how Sun treated Azul, and you'll find that Sun's method of communicating "requirements"is essentially making demands and threats.

"3. NetApp responded by filing a patent infringement suit against Sun - in East Texas , a district infamous for handing down favorable rulings to patent trolls."

Also see the Azul case. Sun proponents keep harping on this point as if it actually meant anything, which indicates to me that Sun's smear campaign doesn't even want to touch on the facts of the matter.

What is very interesting is that my question to Schwartz regarding the Azul case never made it his blog. That indicates to me that Sun is being more selective with it's negative blog postings than NetApp, which certainly demonstrates who's being the more open party here, as that case contradicted Johnathan's statement that

"We're all focused on innovation and winning customers, not litigation."

By suing Azul, I suppose they were focused on "innovation" and not litigation?

Who exactly is the patent troll here?

As a customer of both NetApp and Sun, I clearly see Sun as being the initiator of this nonsense. Not saying NetApp smells like roses, but they certainly are the innovator when it comes to storage; Not Sun.

[Travis Roberts]

with all this talk of waving letters around, Dave, I have this mental image of you as Joe McCarthy, except you don't have a list of communists in the state dept but a list of threats from Sun.

[blogs]

Why this site is called blogS.netapp.com? I can see only one blog here. What a one person company...

[David Hopwood]

"max" attributed the following to me: "Sun gave the world NFS, XDR(the catalyst for NDMP), Java, etc....not to mention simply the best hardware and OS( not to mention the most secure) in the world."

I did not say this; "solaris" did (and I would certainly never describe the Solaris OS as "the most secure OS in the world"). The "Posted by:" lines apply to the post above, not the post below. Yes, it is easy to get this wrong; blame the TypePad style designers.

--David Hopwood

[Marin Debelic]

Hi Dave,

This NetApp/Sun patent affair is really heating up...I've read your posts with great interest and I would appreciate if you could clarify a few points for me:

1) How do you comment SUN's remark that you merely "threw a few patents over the wall"? SUN says that NetApp didn't provide for a "claims chart" which demonstrate how ZFS infringes your patents. Is this true? If yes, why didn't NetApp provide this if their infringement is so evident?

2) SUN is arguing that one of your claims includes a NVRAM (a non volatile mean of storage) as fundemental element, while they never use it. How do they infringe this claim?

3) In a previous post you mentioned that one of your patents describes the "copy on write" technique (COW)which is used both by WAFL and ZFS. I had a look at the patent and apparently the "copy on write" technique is cited as Prior Art i.e. as something known prior to your patent and something which shouldn't be an exclusive of either NetApp or SUN. Have I understood well?

thanks in advance,

Marin

[max]

The "Posted by:" lines apply to the post above, not the post below. Yes, it is easy to get this wrong; blame the TypePad style designers.

Whoops! apologies to Mr. Hopwood!

[max]

In a previous post you mentioned that one of your patents describes the "copy on write" technique (COW)which is used both by WAFL and ZFS. I had a look at the patent and apparently the "copy on write" technique is cited as Prior Art i.e. as something known prior to your patent and something which shouldn't be an exclusive of either NetApp or SUN. Have I understood well?

I believe that most implementations of COW are better described as Copy Out (as in out of the FS or LUN) on Write. (Think how VxFS does snaps) From my perspective, what makes ZFS a WAFL clone is it essentially uses the *exact* same method as WAFL. Essentially, there wasn't a whole lot of original thought put into it...

Sun is basically doing what everyone accuses Microsoft of in the "innovation" department.

[Marin Debelic]

"I believe that most implementations of COW are better described as Copy Out (as in out of the FS or LUN) on Write. (Think how VxFS does snaps) From my perspective, what makes ZFS a WAFL clone is it essentially uses the *exact* same method as WAFL. Essentially, there wasn't a whole lot of original thought put into it..."

Whether ZFS and WAFL have some similarities, may be irrelevant in terms of the patent suite. What really counts is what is covered by the claims of the patents i.e. what kind of exclusive right has been granted to a patentee by the Patent Office. Normally claims are a combination of process steps or elements and the potential infringer's product needs to map fully onto a claimed combination. If they don't, they might not infringe.

There may be many lots of other features in the file system which were 1) already known at the time of the invention, 2) were obvious derivates thereof or 3) which belong to someone else (neither SUN nor NetApp).

M.

[Mike Eisler]

OK, try as I might, I could not shut up when I read this (Dave can fire me if he wants. :-):

> lets see, Sun gave the world NFS, XDR(the catalyst for NDMP), Java, etc....not to mention simply the best hardware and OS( not to mention the most secure) in the world.

> What has Netapp contributed?

NetApp contributes people to write standards specs, people to write open source code, and cash to allow non-NetApp pople to write open source.

Some examples.

NFS: Two of the co-authors for RFC3530, NFSv4.0 were NetApp employees. The co-chair of the NFSv4 working group is NetApp's CTO, Brian Pawlowski. Brian, BTW sits on the board of the Linux Foundation. Speaking of Linux, Trond Myklebust , the official Linux NFS client maintainer, is a full time employee of NetApp. In terms of current work items of the NFSv4 working group, 2 of 3 editors of the NFSv4.1 spec are NetApp employees. Major pieces of NFSv4.1 such as sessions, pNFS, directory delegations, etc. were derived from documents written by (or co-authored) NetApp employees. All the NFS/RDMA specifications were co-authored by Tom Talpey of NetApp.
Tom also made sure there was a reference implementation of NFS/RDMA for the Linux client and server and along with other NetApp folks, wrote a lot of the code. Speaking of the Linux client and server, NetApp is active in the development of a pNFS client and server for Linux.

BTW, the only reason XDR is now a full standard is because of NetApp; the editor of the final XDR RFC (me) was a NetApp employee.

Work on the federation namespace for NFSv4 is being driven by NetApp and other companies.

Finally, ONTAP 7G and ONATP GX use BSD technology (the latter for more than the former). So far in 2007, NetApp has donated more cash to the FreeBSD foundation than any other donor. http://www.freebsdfoundation.org/donate/sponsors.shtml

[Steve]

Don't forget all of the work on NDMP. I'm pretty sure Dave himself has more to say about this work. What about DAFS? NetApp has done plenty, but is still entitled to patent and make money from some things.

[Steven Birch]

Its amazing how many people can comment on here and are either a) not directly in the know about any of this, b) are obviously far from being patent lawyers, and c) are doing nothing but share their opinion on a subject they know little or nothing about.

This is one of the reasons I think the Internet has gone downhill over the years. It gives a voice to anyone and everyone, including ones that really should just shut up.

I have been much more impressed with Netapp's products then I have ever been of Sun's products, and I have no plans to stop using or stop purchasing Netapp storage systems because of some usual business as usual in the US tactics going on between two competitors.

[Marin Debelic]

I wouldn't dismiss patent suites as something which can't affect the users in any way. In the case of an infringement, various kinds of remedies may (or may not) be ordered. If things get nasty, an injuction, including the withdrawal of the infringing product from the market, may be ordered (by a court).

[Mike]

--------------------------------------------
I’m sorry you feel that way.

If you'd like to chat, either anonymously by e-mail, or in person, you know how to reach me.

-- Dave Hitz

Re: the above?

why, so he/she can find himself having a one sided conversation with Netapp legal and HR?

I hate to break it to you Dave, but Netapp ain't Oz anymore, hasn't been for looong time and has quite a well earned reputation for its often mean and petty treatment of employees, internal politics, and classic legacy player treatment of customers.
-----------------------------------------

As a "real" NetApp employee, I'm proud to say our culture is not at all the way you have presented it. We have exceptional, highly skilled engineers and developers that have designed and continue to develop new technologies which have made our customers lives so much easier. That kind of talent doesn't hang around at companies like the one you described.

If you don't believe me, check out the Fortune Magazine's 100 Best Companies to Work For 2007.

http://money.cnn.com/magazines/fortune/bestcompanies/2007/full_list/

[Bill Todd]

Wow - what a zoo. I tend to agree with Steven Birch: many of the comments here seem to stem from open-source zealotry (I appreciate open-source, but don't worship it) or from anti-software-patent fervor (which I happen to agree with, but I don't fault either Sun or NetApp for playing by the existing rules), rather than from any real understanding of the issues.

In point of fact, ZFS is far less innovative than WAFL was by virtue of the fact that ZFS conceptually borrows heavily from WAFL (though whether to a degree that's legally relevant I have no idea). And regardless of whether NetApp approached Sun about licensing some of the StorageTek patents (for whatever reason), Sun undoubtedly appears to have fired the first actual shot in this exchange by demanding money from NetApp on the basis of whatever patents it felt were applicable and without any offer to negotiate, so should not have been surprised by NetApp's reaction.

I don't have any personal knowledge of how NetApp behaves, but I do have a great deal of respect for its technology (and for several of the contributors to it, including you). Sun's technology is no slouch either, though characterizing Solaris as the best and most secure OS in the world demonstrates laughable ignorance of the industry.

So I hope that sanity prevails and you settle this amicably to the benefit of all, despite Sun's mis-step and your justifiable even if somewhat heavy-handed response to it. And I thank you for the relatively even-handed commentary you have provided here: it's nice to see a corporate blog that's not *totally* marketing-driven (not that you don't occasionally stray a bit into that area in other discussions).

[JJ]

I'm a customer of both companies, and run both systems together in our shop. Having read all the comments here as well as a lot of the different blogs and reference materiels, I think we may be overlooking what the end solution is. A couple of end-game scenarios to consider:

1) Sun wins this litigation, crushes Netapp and the world moves forward. Sun is victorious, keeps ZFS out in the wild and all is good. Except... they now have quenched another significatnt provider of Open Source technology, reputations are damaged across the board, and the result is negative across the board.

2) Netapp wins and defends successfully in these litigations. Sun pulls ZFS and all iterants of it from any further development. Except... now Sun is damaged significantly and thinks twice about releasing other open source info to the community at large, and the result is negative across the board.

3) (the solution I'd like to see). Sun pulls ZFS for 3-6 months, (no, you can't remove what's already there, but you can stop development on any further versions/changes, etc.) and re-writes the questionable areas that may infringe upon Netapp Patents, while retaining the end functionality that everyone expects. This drives a new period of innovation in FS design at Sun, and makes the marketplace as competitive as it has ever been. Netapp pays for the license to whatever technology it needs from Sun, but never wants to get into this fight again, so it re-designs around the patent and drives a new period of innovation in the department in question.

More importantly, I hope this resolves somewhat amicably. I sure as heck don't want to move over to HP and EMC/Hitatchi...

[Han Solo]

Frankly, as a sr level storage architect at a fortune 50....my response is that I am calling EMC back and making some different choices next when my filers are coming off lease.

[Jason]

I'm sad that Network Appliance and Sun are mad at each other. I just want my files to have a safe place to call home.

Please work this out so I can sleep at night without having to worry about finding funds to replace my storage gear. Some of us pay for our gear out of the taxpayer's pocket, and every time I see IP disputes in the news it makes signing over part of my own paycheck that much harder every year.

That doesn't mean you aren't within your rights to defend your investment in intellectual property, but is it really necessary to jump right into the court system? Why don't all you folks, including the ZFS team leads at Sun, sit down to a nice dinner and try to talk this out first? It might sound naive, but at least then you can say you tried to work it out the easy way. Every hour of litigation you spend instead makes me wonder if I'm paying my invoices to your attorney's auto brokers instead of your fine engineering team.

[Dave Armstrong]

In reading some of the posts here it's becoming more and more obvious how crippling software patents are. I've always maintained that patenting software is like patenting math.

Having said that, it strikes me as odd that someone could complain about a telnet vulnerability. Telnet is not and never has been considered a safe protocol. Anyone using telnet over ssh needs to reevaluate their reasons.

Secondly, Solaris is probably very secure, but it's got a long way to go in usability. Pressing control-backspace kills the X-Server. Sure, you can undo that setting with a single command but it's not documented. One asks oneself, how responsive can a company be which allows an obvious mistake like that release after release?

I hope Sun and ST mend their ways and I really hope congress and the EU, amoung others drop software patents altogether.

[Faisal Puthuparackat]

Software patents suck!

I was recently trying to solve a problem that bordered on string hashing mechanisms, in an attempt to write a n optimized clustering system. Unfortunately the road I took in my design led me to a software patent that implements the hashing mechanism I was attempting to develop. Now - even though I didn't go into the specifics of the patent (partly so I wouldn't wilfully infringe), it pisses me off because I have to now downgrade my design and use less efficient and more time-consuming techniques to do the clustering. *Any* company that actually initiates a patent litigation in my opinion is killing off innovation. period.

[quote] He says Sun never “demanded anything”, but here is an e-mail from Sun’s lawyers doing exactly that. Legal language can be tricky to understand, but the translation of Sun’s letter is “You infringe our patents, so pay us $36 million.” [/quote]

I think we'd all gain a little more perspective re - this email, if we were able to see the content of the Oct. 23/06 letter from NetApp to Sun, which is referred to in the 1st paragraph of the message.

Any chance of posting that?

(Not holding my breath.)

[WL]

Agreeing with JohnQ, the nameless post at "October 25, 2007 at 02:51 PM", etc... The letter posted here is clearly not the beginning of the story. If we're to form an opinion about who's morally in the right, it would help to know how this started.

[Matthew Flaschen]

What Jonathan Schwartz said is, "First, Sun did not approach NetApps about licensing any of Sun's patents and never filed complaints against NetApps or demanded anything." I agree that's somewhat misleading, but it also seems to be true.

NetApp first approached Sun/StorageTek seeking to buy the patents. Sun wasn't willing to sell, and suggested licensing instead. Suggesting licensing basically means saying /These are the patents you infringe, so pay us X./; that's what Sun did. Apparently (a lot is out of context), you didn't want to pay that much, so you claimed Sun infringed your own patents. They disagreed, and you filed suit.

I don't think software patents are legitimate, so I'm not enthused at the thought of Sun wanting license payments from you. But it remains the case that you brought it up, by trying to buy patents they weren't selling. At that point, their only choice was to say /You don't infringe those patents/ (weakening their portfolio) or request a license fee. I doubt they would have brought up the patents if you hadn't. The fact remains that you were first to file an infringement lawsuit, and that costs you most of the sympathy.

[Terry Dwyer]

The problem here seems to be that at no point in the exchange did either side offer to cross license patents.

If these companies want to spend money on law suits they would be better served to join forces and sue the USPTO for allowing patents in a field where they do harm rather than encouraging innovation as is the purpose of patents.

[Bill Todd]

Hi, Matthew -

Given your assertion that Jonathan's statement 'seems to be true', could you explain exactly how you figure that "These are the patents you infringe, so pay us X" does not constitute a 'demand'? I do agree with your paraphrase, by the way: Sun's .pdf that Dave links to seems superficially bland until you get to its use of the word 'defense', which rather clearly suggests that Sun is stating NetApp needs to defend against action by Sun rather than being just a friendly negotiation over licensing non-infringing patents.

Furthermore, you've conveniently glossed over the fact that the patents you referred to were patents that NetApp had indeed expressed an interest in buying but denied it was infringing (hence one might suspect that they wanted to own that IP for use in future development).

Terry -

The .pdf that Dave linked to seems to suggest that NetApp indeed proposed a cross-licensing agreement which Sun dismissed.

That being said, I'll add my own voice to those who think that seeing more of the relevant correspondence would help people make better-informed judgments on this matter.

- bill

[Anonymous]

What a joke.

Dave - your series of posts seem not only petty in tone/nature, but do appear to be spin merely by your filtering of what facts you present.

In addition, the word "require" or "demand" does not appear once in the letter you posted from Sun. I believe the word they "proposed" a cross-license and asked for a discussion of the proposal.

I have to say, as an outside observer, NetApps looks pretty foolish in this case. Your posts seem very self-centered and petty. If you're not going to 'argue' the case in public, I think you would have been better off staying silent on the issue.

[Bill Todd]

Ah - another bravely-anonymous incompetent: you don't even seem to have read (or at least understood) the post immediately preceding your own, where the implicit demand from Sun was made clear, specifically noting their use of 'defense' in characterizing NetApp's response to their earlier (and then repeated) statement that NetApp should pay them $36.5 million to license the patents that they alleged 'mapped onto' NetApp's products.

Far from supporting your suggestion (based on no evidence that I'm aware of) that *Sun* was proposing cross-licensing, that same email indicates that

1. Sun was reiterating its earlier claim that its patents 'mapped onto' NetApp's products and that NetApp should pay Sun $36.5 million to license them.

2. Sun was rejecting NetApp's denial that its products infringed Sun's patents.

3. Sun was rejecting NetApp's contention that ZFS infringed NetApp's patents.

4. Sun was therefore rejecting NetApp's suggestion that this alleged infringement by Sun 'significantly changed' the earlier circumstances under which Sun had first requested $36.5 million from NetApp (i.e., Sun was rejecting NetApp's proposal for a more even cross-licensing agreement).

Of course, if you actually have any new evidence to back up what appear to be your purely personal and completely unfounded opinions, I'm sure that many people here (including me) would be interested in seeing it.

- bill

[Rick]

This question is for Dave: why East Texas
and not a CA court?

[seems to me]

Seems to me that anytime a patent is mentioned to a company, they pretty much have to deny that they infringe it - to do otherwise would be to admit that they do.

And any time one of their patents is mentioned in the context of a competitior, they pretty much have to claim that the competitor infringes it, because to do otherwise is to suggest that the competitor does not.

Which means in summary: patents suck

[MyView]

Dave,

I think you have gone too far with this. Let's see first you find that you are infringing on patent(s) held by STK then in your greedy way you try to buy them out which fails. Then you fail to comply with the licensing of the same patent(s). You refuse to pay and let this fester and then you sling mud with a lawsuit for which you claim you hold IP rights. Then Sun slings mud and counters and you still are moving forward! This is very negative to all parties.

You are very irresponsible.

Grow up!