Sun Sues NetApp: Says “You Cannot Unfree What Is Free”

Sun is seeking a “permanent injunction against NetApp” to remove almost all of our products from the market place. This is exactly the sort of broad but vague threat that gets people so frustrated with patent litigation. (The timing is no surprise: their deadline for responding to our complaint was this Friday.)

I have tried very hard in my blog to be unusually open – very detailed and specific – about how Sun is infringing our intellectual property. I’ve been trying to set a higher standard in how companies conduct patent litigation, and I’m disappointed in Jonathan for not doing better than this. This sounds like Sun’s broad threats when they sued Azul, but in the end, Sun didn’t put Azul out of business or even stop them from shipping products. I’m quite confident that two years from now – or however long it takes this suit to reach court – NetApp will be doing just fine. (For details on how this whole mess started, see my blog post, Jonathan’s response, and my response to him. I won’t revisit those arguments, so if you have comments about who is evil or not, please put them in those posts.)

But from a philosophical perspective, I found one part of Jonathan’s post especially interesting:

NetApp’s objectives were clear - they'd like us to unfree ZFS, to retract it from the free software community. Which reflects a common misconception among proprietary companies - that you can unfree, free. You cannot.

Jonathan seems to be arguing that once something has been put into open source, it is beyond the law. I disagree completely! To get us away from the details of Sun and NetApp’s particular case, let me make an analogy.

Suppose that I steal and then open-source Jonathan’s patented recipe for chocolate chip cookies. The recipe will probably live forever in the web. There is no getting those bytes back, and if it’s a good recipe, there is no stopping individuals from baking those cookies.

On the other hand, if I start a company to sell Jonathan’s Patented Cookies™, then it’s perfectly reasonable for him to ask me to stop. (Let’s just assume, for the sake of the analogy, that he’s got a valid patent.) Or if Nabisco starts selling Jonathan’s Patented Cookies™, it’s perfectly reasonable for Jonathan to ask them to stop. It isn’t a question of trying to unfree what’s free, or retracting the recipe from the free recipe community. It’s a question of whether corporations must obey the law.

Jonathan’s claim that “you cannot unfree what is free” sets a very dangerous precedent. It says that you can steal anything, as long as you open source it afterwards. That can’t be right! I do understand that many open source proponents argue there should be no legal protection at all for information. “Information wants to be free.” But even if Jonathan believes that, he ought to wait until the law changes before taking Sun down that path.

One of the most important rules of open source is that you must only give away things that belong to you. If protected information does leak into open source, it will probably live forever in the web, but that isn't the issue. To me, the issue is that large corporations should stop making a profit on protected information that doesn't belong to them. That's what we're asking here.

Comments

[inomiad]

"It says that you can steal anything, as long as you open source it afterwards. That can’t be right!"

"One of the most important rules of open source is that you must only give away things that belong to you."

Please. ZFS doesn't include a single line of code by you. You don't own *any* copyrights to *any* ZFS code.

Gladly, *and for good reason*, software patents don't apply here in EU. They're just absurd.

[retiarius]

Aside from looking like a kettle calling the pot black,
did NTAP read the infamous Gary Reback story about
the IBM/Sun patent shakedown before filing the patent suit?

http://members.forbes.com/asap/2002/0624/044.html

These are no win situations.

-- retiarius

--------------------------------------------------------------
The Forbes article was a great read. It described exactly how it felt when Sun came to us demanding payment. The irony is that in the Forbes article, it was IBM going after Sun, but in our case, it was Sun that sent the team of lawyers requesting payment.

-- Dave Hitz

[webster]

You presume that "steal" part.

Organizing and backing up documents is a sound business method and practice.

If you think of a good way to tell a computer to do this in a particular language, you should do something to protect that particular method. Copyright would be good.

If someone uses different language and instructions to do the same thing, they can protect their method the same.

That's two ways of doing the same thing. Where does the "stealing" come in?

There is nothing unheard of in prescribing a file format and then manipulating it to write and copy on interconnected hardware devices.

Your language or code is unique and innovative, organizing files is not.

When you claim a patent on a method, you can claim "theft" by anyone that performs the same method in a totally different language and way, even when that other person has never seen your specific langauge. He may not even speak it.

So when you scream "theft", you are really claiming that your patent blocks anyone else that tries to do the same method with whatever language.

Your motives are suspect. You're permitted to exist and operate on the Monopoly OS. Get out of Court and back to work. There is a new system coming that will out-perform ZFS and NetAPP someday. Do you plan for your patents to cover that? Don't miss out.

[Raja]

You say "Suppose that I steal and then open-source Jonathan’s patented recipe for chocolate chip cookies. The recipe will probably live forever in the web. There is no getting those bytes back, and if it’s a good recipe, there is no stopping individuals from baking those cookies."

I am not a lawyer, but does this not go against the Open Source principles? Since the recipe is available for everyone, but the Copyright rests with Jonathan, can he not claim that you stole it from him and hit you with theft of the IP under the existing Copyright laws?

Just curious...

[Private]

Despite all the rhetoric, you are the plaintiff in this lawsuit, and began this lawsuit.

If you'd taken 10 seconds to check with any engineer at almost any company, they could have told you this simple fact. Almost all computer software and operations infringe an enormous number of patents.

What did you expect sun to do after you filed suit? Sit around? Please. And you claims that you simply seek declaratory judgment of non-infringement is transparently false, as anyone who reads you actual complaint will see.

SUN has hasn't picked up a lot of open source traction, perhaps because they are using the CDDL rather then dual licensing with the GPL (they have some bogus "we give you more" excuse for that, when it's clear the community would like a version with less).

But this is clearly going to a test. Will the company that files patent litigation over relatively common computer methods prevail. Or will they be hoisted on their own petard.

If I was a NetAPP customer I'd hold off any major NetApp investment. These things never end well for anyone. I wouldn't be surprised if we see others come out of the woodwork with more patent litigation for netapp, a la the NTP patent mess.

[Joe]

Stating Sun is "stealing" cookie recipes or anything else is really a stretch. It is one thing to say someone is infringing your patents, but quite another to accuse them of stealing.

But what is even more curious to me, after reading Sun's lawsuit filed today, is that NetApp was accused of stealing the trade secrets and technology of another company before filing for the patents, settled that lawsuit by paying big bucks, and never told the patent office about it, which could mean trouble.

See:
In July 1994, The Whipsaw Group joint venture and its
Case 9:07-cv-00206-RHC Document 25 Filed 10/25/2007 Page 34 of 64

-35-
individual members filed a lawsuit against NetApp, Michael Malcom and other defendants. Mr.
Malcom is named inventor on the ’292, ’211 and ’352 patents. The lawsuit alleged, among other
claims, misappropriation of trade secrets. On August 14, 1996, NetApp and its insurers agreed
to pay $4,400,000 to settle the litigation. The subject matter of the litigation concerned the
origin, inventorship and ownership of file storage technology, including technology substantially
similar to that disclosed and claimed in the asserted ’292 patent. Upon information and belief,
information highly material to the patentability of one or more claims of the ’292 patent was
received and known by NetApp and Mr. Malcom leading up to and during the course of the
litigation. NetApp and Mr. Malcom did not disclose this highly material information to the
USPTO during the prosecution of the ’292 patent. Nor did they disclose the existence and nature
of the lawsuit to the USPTO during the prosecution of ’292. The ’211 and ’352 patents are
related to the ’292 patent, and NetApp and Mr. Malcom also failed to disclose this highly
material information during the prosecution of those patents. On information and belief, NetApp
and Mr. Malcom withheld this highly material information from the USPTO with the intent to
deceive the USPTO.

So what say you Dave? What's with all these "stealing" claims? Perhaps you should think twice before hurling such accusations.

[Private]

One additional comments

Actual legal docs here it seems:

http://blogs.sun.com/dillon/resource/SunAnswer.pdf

Should be interesting to watch this!

[max]

webster,

You stated:

When you claim a patent on a method, you can claim "theft" by anyone that performs the same method in a totally different language and way, even when that other person has never seen your specific langauge. He may not even speak it.

Did you know that Matt Ahrens (one of the core ZFS developers) worked or at least was an intern at netapp in the File System group?

Isn't it weird that ZFS pops up out of Sun, a company who never wrote a file system (in fact, they'd rent out VxFS) and it looks, smells and feels exactly like WAFL?

Silicon valley is an incestuous place work wise, but I think it's a bit odd that ZFS is closer to a WAFL implementation than say a traditional VxFS setup?

[Trent Black]

anybody, that files a lawsuit, and is taking on sun and groklaw, and open source, to protect, basically, math, is crazy.

you will soon be a house hold name, of one of the bad guys. do you really want that?

do you want to be the next SCO? do you really want to go against a whole community to try and protect a business, that you should be innovating instead of trying to enforce math on something that most view as something that would be invented one day anyway?

[Private]

Max,

An interesting post actually. Sun is not an open source golden child yet. I think IBM has built a lot more cred, they actually use Linux / GPL things, and pushed for the Java openness against a very reluctant sun.

It remains to be seen if Sun gets deeply into the open source community, because they currently play on the edge with CDDL lockout.

But the bottom line is they open source a file system, and the community does usually think of alogs and code as basic math, and so is not a big fan of litigation around it.

That said, I suspect we'll discover a fair bit of dirt from both companies through this.

While these guys litigate though, someone is going to be putting together a nice open source file system (btfs from oracle, somewhere else) and when it gains currency someone and then soon everyone will be packaging and shipping the open source SAN solution.

[Stooxie]

For all you people whining about why Sun doesn't use GPL, that was explained here:

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

"Now despite what you suggest, we love where the FSF's GPL3 is headed. For a variety of mechanical reasons, GPL2 is harder for us with OpenSolaris - but not impossible, or even out of the question. This has nothing to do with being afraid of the community (if it was, we wouldn't be so interested in seeing ZFS everywhere, including Linux, with full patent indemnity). Why does open sourcing take so long? Because we're starting from products that exist, in which a diversity of contributors and licensors/licensees have rights we have to negotiate. Indulge me when I say It's different than starting from scratch. I would love to go faster, and we are all doing everything under our control to accelerate progress. (Remember, we can't even pick GPL3 yet - it doesn't officially exist.) It's also a delicate dance to manage this transition while growing a corporation."

In otherwords, because Sun is a commercial entity that is releasing its already-commercially-licensed products in to the community, it ain't so cut and dry.

It's ok, let all the arm-chair commandos tell Sun how to run its business. We've kept our sh*t clean for over 20 years now. How many other companies can claim that?? We've had some legal scuffles but not a single one has had a lasting negative impact. People thought the suit against Microsoft was sour grapes until we walked away with 2 billion bucks and an agreement to work together.

Sun is stronger than ever and its because of iron clad ethics and relentless innovation.

Where exactly would NetApp be without NFS? Every penny NetApps makes is thanks to Sun.

[Kevin Graham]

What licenses are it that Sun's threatening to revisit? I had thought OnTAP was derived from NetBSD, which would've picked up the NFS implementation from Sun's contributions back into 4.3-Reno and 4.4-Lite, where they very unambiguously would've relinquished rights.

I don't know enough IETF history to know where these older RFC's fall under IETF's license stance, but its not clear what else is left encumbering OnTAP?

[James]

You write "I’ve been trying to set a higher standard in how companies conduct patent litigation".

Tricky; most, though not all, software patents are against the interests of society. Litigating over any but the most innovative is particularly harmful as it adds to the general atmosphere of fear of patents which restricts most innovators. If you want higher standards, you'll litigate less and innovate a *lot* more instead. Competition from OSS might force NetApp to do so.

Filesystem design has moved on a lot in the last 10 years. Journaling, snapshots and other robustness features have gone from being research items (before NetApp used them, I suspect) to being ubiquitous. SO far as I've seen, NetApp's successes have largely come from its business model, not from technological innovation.

[Private]

Stooxie,

"For a variety of reasons" is one of the most general answers I have ever seen. Having actually read other posts about the GPL and how the CDDL gives folks "more" I'd simply suggest looking at GPLv3 and GPLv2, and then dual licensing ZFS into one of those. Overnight, you'll have greater adoption. Do you remember the Java "ethics". I certainly do, and all the folks who had to reinvent wheels because Sun kept on changing it's position and breaking its promises.

[Private]

Stooxie,

"For a variety of reasons" is one of the most general answers I have ever seen. Having actually read other posts about the GPL and how the CDDL gives folks "more" I'd simply suggest looking at GPLv3 and GPLv2, and then dual licensing ZFS into one of those. Overnight, you'll have greater adoption. Do you remember the Java "ethics". I certainly do, and all the folks who had to reinvent wheels because Sun kept on changing it's position and breaking its promises.

[Private]

Stooxie,

"For a variety of reasons" is one of the most general answers I have ever seen. Having actually read other posts about the GPL and how the CDDL gives folks "more" I'd simply suggest looking at GPLv3 and GPLv2, and then dual licensing ZFS into one of those. Overnight, you'll have greater adoption. Do you remember the Java "ethics". I certainly do, and all the folks who had to reinvent wheels because Sun kept on changing it's position and breaking its promises.

[Jimbo]

Just because Azul didn't go out of business, doesn't mean you won't. Sun can live without ZFS, but can you without all of your products? Remember, Sun has a *huge* patent portfolio...

Nice job in attempting to distort facts Dave, as if you know anything about the Azul settlement. Perhaps this is why Azul is not out of business:
http://www.theregister.co.uk/2007/06/20/sun_azul_stock/

Your blatent attempt to distort facts, and cherry pick your press links to support the ridiculous path NetApp has embarked upon is frighting because of its pure stupidity

[The People]

The court of public opinion hereby judges you and NetApp guilty of patent trolling. Immediate punishment shall be lost mind and market share for NetApp for an indefinite number of years to come. Congratulations.

[Bill Todd]

Too bad, Dave: trying to explain this rationally to the analytically-impaired seems to be about as effective as trying to explain to the Great Unwashed a few years ago why invading Iraq was a very bad idea. The New American Way is apparently to substitute prejudice for fact and greed for rights: people here seem to be as convinced that they have a 'right' to free technology (regardless of who actually owns the rights to it) as music pirates are of their 'right' to free (copyrighted) music (and consumers are of their 'right' to cheap oil regardless of whose sand it happens to reside beneath), and anyone who dares to point out that the law says otherwise is accused of being anti-social.

I guess the idea that one should live within the law until one actually succeeds in getting the law changed has gone completely out of fashion. If one is convinced that software patents are "against the interests of society", then that appears sufficient to condemn any who seek to enforce such patents (except Sun, of course, since their attempt had not reached an actual courtroom proceeding but was only the implicit threat of one, so that's all right then). Observing that some people feel that *all* private ownership is "against the interests of society" would probably go right over their heads, of course.

I had hoped that you and Sun would manage to work out a sensible agreement in this matter, but am now beginning to think that (assuming that your basis for legal action is as sound as I suspect it is) it might be better to hold your ground and hang Sun (and its supporting zealots) out to dry. Somebody needs to learn a significant lesson here, and better now than later.

- bill

[Jai Hyuk]

Bill Todd,

You forgot to mention Hitler and pedophiles in your rant.

Dave Hitz,

The thing that get people 'frustrated with patent litigation' is when companies initiate patent litigation. RIM vs NTP, anyone?

[Anon.]

"I guess the idea that one should live within the law until one actually succeeds in getting the law changed has gone completely out of fashion."

Yes, in the US patent courts, it did go out of fashion for a while. They started approving illegal patents left and right, and forcing the Patent Office to do so as well.

Under US law, it's pretty damn clear that nearly all, if not all, pure software patents are invalid: they're attempts to patent pure mathematics (which is specifically excluded), they routinely patent problems rather than solutions, they are not written to allow people to implement them (so they don't really provide the disclosure legally required), most of them are obvious to a person skilled in the art, and on top of that the vast majority were anticipated by prior art. The courts devoted to patent cases just got coopted by patent attorneys (whose interest is usually in maximizing number of patents) and allowed this junk to issue. The Supreme Court has been pushing back lately.

The asserted NetApp patents in particular have some especially obviously invalid claims, for which there is prior art, which claim problems rather than solutions, and which were patently obvious to anyone in the field.

Oh -- it's also very, very suspicious that you're filing suit in the infamous "patent troll court".

Good luck to you killing Sun's invalid patents. Good luck to Sun killing your invalid patents. Best thing that could happen would be if all the involved patents were thrown out.

[Fran Taylor]

Oh please. You guys are two heartbeats away from losing your business to Samba. This is a hail mary pass worthy of Doug Flutie. You build your product around Free Software and then you turn around and attack it. You should learn from SCO. Free Software will defend itself en masse, your patents will be torn to shreds, and you won't even have your reputation left when it's done.

[TommyB]

I find the fact that Netapp filed suit first very telling. Dave can talk about cookie recipes all he wants but to me it sounds like Dave is just trying to keep other companies from baking a better (and less costly) cookie.

This sounds like the beginning of the end for Netapp. And not due to the Sun lawsuit. The act of filing his initial law suit is the act of a desperate CEO.

[Private]

Actually, most of us believe in living within the law.

The law says there are a lot of patents. The law says you can choose whether or not to file suit. And finally, the law is going to determine the "winner" of this lawsuit.

Why is it that the companies actually innovating are rarely suing... oh right, because they are innovating.

Trying to explain this rationally to the analytically inclined is pretty much doomed :) I'm reminded of all the speeches are dear politician's gave for invading Iraq. That was a "preemptive" war as well.

NetApp is going to find it's preemptive war is about as successful. And the open source has heard Bill's communist type allegations before. Believe it or not, the open source community is well versed in various forms of code ownership and law, the very same open source code NetApp used to get started.

Be interesting to see how NetApp's stock's going to trade since their announcement. I suppose that if they actually had a strong case and would win big their stock would go up.

I don't see anything in this complaint that is going to "hang sun out to dry". Huh? This is about ZFS I believe. Even if Sun loses, you don't think they can adopt their management tools to some other file system? Please. I love the talk about teaching lesson's and hanging people out to dry.

[Private]

I have no idea about the merits of this case. Maybe SUN is right, or maybe not. But regardless of who's right or wrong, this just spells confusion and trouble for both SUN & NetApp customers until the case is resolved. I'll bet that EMC, HP, HDS, and other vendors must be rubbing their hands in glee at this opportunity. And of course the lawyers.

By the way, it just seems like SUN has been getting increasingly involved in several patent as well as other lawsuits in recent years. From big company (Microsoft -- http://www.news.com/2100-1001-856678.html) to startup (Azul -- http://www.eweek.com/article2/0,1759,1957359,00.asp) to the Government (US DOJ -- http://www.infoworld.com/article/07/04/19/HNdojjoinshpsunlawsuit_1.html). Maybe they just have a lot of good lawyers and find reasons to keep them busy.

[Peter C]

I think people here are looking at the problem from the wrong angle.
AFAK the entire issue started with Sun's claim against NTAP for using technology they claimed was the IP from StorageTek. Then this went from bad to worse.
Please understand that NetApp is NOT procecuting the open source community by any means. I fully agree with the fact that not Sun but Netapp should have given the filesystem to the community since they "owned" the IP. Sun made a great move here : creating a filesystem that is almost WAFL, then give it to the Open Source community so that further development on the filesystem is almost free for them, and then competing against NetApp by selling a cheap solution with OS technology. Wops...
NetApp has spent a lot of money on R&D on WAFL, so I think it is just normal NetApp gets paid for that. ZFS for the Open Source community is free, but is it that weird that for commercial use of ZFS NetApp asks to be compensated? They were the ones that have spent money and time on making and enhancing a great filesystem. Grabbing that research and then use it yourself for free is not a noble thing. Sun made stealing acceptable by giving it to the Open Source community. They would have been a kind of Robin Hood if they would not have used it for their own commercial benefit.

This is not like the beginning of the end for NetApp at all, and I am sure NetApp is not desperate at all. I am told that this childish way of filing law suits against each other is the "normal" way companies are talking to each other. There are enough examples you can find. But this is not like the SCO law suit at all! Stick to the facts here. NTAP is not fighting the Open Source community in any way. SCO did. This is only a legal battle between two major companies.

[Mark]

Max,

In all my years of following the computer industry, I have noticed that innovative companies compete by building better products that customers want to buy.

When the management can't figure out how to innovate anymore, they start suing people for patent violations.

Regardless of the merits of your lawsuit, you're sending a signal to everyone that says "We've run out of new ideas and can't think of a way to make money by building products people will buy. We'll keep the money coming in by suing people instead."

Good luck with that.

[Mikel Manitius]

Software patent? LOL!

And who created NFS?

[Anonymous]

Most of us live within the law, just like most of us drive the speed limit. Individuals tend to do what is best for themselves as long as they don't believe it's hurting anyone else. Companies tend to do anything that they think they can get away with. As for stealing, doesn't that require that you deprive the victim of something.... making a copy does not deprive anyone of the original.

[BongHit4Jesus]

Patenting thought as that's what software is, i.e. process, method, mathmatics, language, is patently stupid!

One of several issues in this country that makes one wonder about the sanity of the people running it!

[Dalibor Topic]

It seems you've successfully managed to tag NTAP as the next SCOX. Congratulations.

[Vexorian]

You know, if patent litigations are so frustrating, you should avoid to behave like a patent troll...

And BTW, do you really think requiring javascript prevents bot attacks? It has just annoyed me, a non-bot commenter rather than prevented any attack. A bot developer can add a javascript interpreter, you know...

[Vexorian]

Yes, that sun blog seemed desperate to make the open source community join the issue.

But regardless of that, this page: http://www.sun.com/lawsuit/zfs/ seems to have convinced me that your claims are not good to approve, and that it would be terrible if you won.

Law is one thing but I think that claiming you own IP over that stuff is just crazy... I guess I am now able to understand how senseless software patents are...

[private]

This one is a must read and almost sounds like something out of Ripley's Believe It or Not:

"IBM patents making money from patents"

http://www.theregister.co.uk/2007/10/24/ibm_patents_patents/

Where does the world go from here?

[Eduardo]

Hey Dave, here's a question for you. What do you think of Microsoft's tactic of claiming that Linux violates it's patents, but without disclosing specifically what patents and what parts of Linux? Do you think it is a legitimate strategy?

[NoMorePatentTrolls]

Here's the kicker for James in regards to *Software Patents*. See, even in the U.S.A., there's no such thing as a software patent. There are *device* patents that discuss how the *device* uses methods and ideas to implement some *thing*. If the patent is worded to specifically state *software*, it's automatically rejected.

[DrFrost]

Like a lot of people in this industry, I think software patents are a bad idea. And we're now reaping the "fruit" of this fundamentally flawed process.

The entire idea behind patents was to protect innovation, and now large companies with large patent portfolios are using it to stifle innovation.

Unfortunately the system is horribly broken at present and most of the patents granted are entirely too obvious to ANYONE reasonably skilled in the art. It's ridiculous.

[Dr Whizzit]

"Jonathan’s Patented Cookies™

In an attempt to make some analagy aboput patents, it looks like you have accedentally misplaced it with everything but. The act of stealing the recipe would have to do with industry espionage and trade secrets.

So instead of educating us about IP, you have only managed to demonstrate your own confusion about intellectual property in general. Patents, copyrights, and trademarks , and trade secrets have very different laws governing them. If you want to make analogies, better stick to one. One can say Jonathan made a similar mistake, since software is most often an issue of copyright, and it is how copyrights are granted that makes open software different from proprietary software.

I must however allow myself the prediction that your patent suit will fail spectacularly, and that you are risking your company's survival on an ill-advised sucker bet. And even if you were to win in litigation, your company stands to lose even more in goodwill.

Especially after that the country's top court has made it much easier to challenge bad patents. So not only do you now risk losing the patents that you hold. You increase the risk of being patent-attacked by other storage vendors, since you will have fewer defensive patents in your arsenal.

I have also seen the claim that Sun started this whole thing. However, the story I hear the most is that once upon a time, Netapp approached via strawmen STK to purchase a patent. STK declined, but figured Netapp probably was violating the patent, and started demanding royalties. Netapp never paid up or reached an agreement on reasonable terms, and finally, now Netapp has brought this to court as a patent suit.

Bad idea. Do you have any idea what lawyers cost these days? Read Bleak house, and ponder the folly of those who think the legal system is a good way to resolve conflicts. Also read any biography on Mark Twain (Samuel Clemens), who had a naive faith in the ability of courts to put things right for him. He was quite the suing machine. Pun intended.

I don't think Netapp are evil. I just think they are confused about IP, and naive about law.

AND IANAL of course.

[A.B.]

Very well put. My first thought was "hmm, Sun standing up to some IP lobbyist-types". Your response leaves me with a vastly improved feeling about your own reasons, and frankly about you personally. Jonathan appears to be on a smokescreen mission, while you are simply giving a measured and rational explanation of the state of play. Kudos to you.

I'll be intrigued to see how the whole affair plays out.

[DevNull Pointer]

Dave -

Maybe you should heed your own advice and spend your companies money elsewhere like in R&D to innovate a better mousetrap instead of wasting it on patent trolling in an East Texas courthouse. Certainly the bane of your existence will not get resolved through legal jurisprudence but acceptance that change is the only constant in this industry and to be competitive you must innovate to survive. Trying to co-opt the alphabet and suing everyone who uses the letters to form words is a desperate measure by a CEO fearful that the industry has past them by and is looking at NetApp in the rear view mirror. Your company is starting to look more and more like DEC, Wang and all the others who did not adapt, embrace and/or accept change. Look what happen to them ...........

[DevNull Pointer]

Dave -

Maybe you should heed your own advice and spend your companies money elsewhere like in R&D to innovate a better mousetrap instead of wasting it on patent trolling in an East Texas courthouse. Certainly the bane of your existence will not get resolved through legal jurisprudence but acceptance that change is the only constant in this industry and to be competitive you must innovate to survive. Trying to co-opt the alphabet and suing everyone who uses the letters to form words is a desperate measure by a CEO fearful that the industry has past them by and is looking at NetApp in the rear view mirror. Your company is starting to look more and more like DEC, Wang and all the others who did not adapt, embrace and/or accept change. Look what happen to them ...........

[Private]

I hope this DOES play out.

A few other posters mention no specifics, make no arguements, except to say Sun is on a "smokescreen" mission.

From where I am sitting, Sun is posting the legal documents to this case online, hardly a smokescreen. And Sun's logic makes much more sense. Everyone loses in a patent fight, but NetApp has more to lose. That seems simple.

NetApp's logic? Something pretty tortured. We'd been in communication with a company that Sun later acquired. That company made various noises about IP. No one had sued anyone. Because of this, we've decided to litigate and are very confident of our position. This despite the fact the ZFS is a tiny part of Sun's business, Sun has a giant patent portfolio, almost everyone is violating some type of issued patent in the software world anyways. Huh?

I wish we could take bets on this. Mine. A settlement favorable to Sun involving cross-licensing (ie, what Sun originally proposed). Dave will of course still make noise about how necessary this all was, but the fact will remain, NetApp cross-licensed with Sun, an existing option.

[mr Z]

Dave, I am a software developer, I only look up patents when I see some headline in the news, only to realize how obvious and low quality most of them are... I even looked up one patent you claimed Sun infringes only to realize that sun's implementation is very different.

I do not believe Sun stole anything from you as you did not steal from them ... (actually it's easier for you to look into their codebase ...). Either way, they they seem to have more patents than you do, and I believe you will not gain anything ot of this...

Open Source is something very disruptive in the software industry, however it creates a lot of oportunity...

Actually you could benefit from ZFS+Solaris or BSD by creating a new line of low cost NAS based on the technology... You could add some inovation and could make more money with ZFS than Sun ...

I do not believe your strategy will pay off for your company. Learn how you can use open source in your advantage...

Your company has reached an inflection point... there is new oportunity waiting and it does not involve suing anybody ...

[Bill Todd]

Wow - if one actually believed a lot of the drivel here one might think that NetApp was a moribund company interested only in protecting its aging IP rather than a company that continues to extend said IP impressively.

Such as, for example, becoming the first major vendor to support data deduplication in *main* (not just backup) disk storage a few months ago. Or merging Spinnaker's storage-clustering technology into its product line over the past few years. Or introducing its customers to ZFS-like checksum protection external to the blocks that it describes years before ZFS did.

Or (going a bit farther back in history) creating mechanisms whereby both NFS and CIFS clients could share files concurrently and safely (ISTR that Andrea Borr from Tandem had a hand in that - just one more in NetApp's deep bench of industry-leading file-system talent that Sun can only dream about, not to denigrate the few that Sun *does* have). And of course NetApp's original 'appliance' that set a new standard in file servers which arguably still hasn't been equaled (the synergy that it attains by careful combination of technologies is downright elegant).

Call me a cynic, but I have a sneaking suspicion that NetApp contributed actively to the currently-emerging pNFS spec in some part because they already understood a better way to achieve its goals, hence did not consider it serious competition. At least I respect their engineering talent enough to believe that is a possibility.

So, as in several other respects, those who have attempted to denigrate NetApp here for allegedly pursuing IP protection *instead of* continuing to innovate simply betray their own ignorance (or their disdain for the facts when pompous rhetoric seems to serve their goals better).

- bill

[Max]

Mark Said:

"In all my years of following the computer industry, I have noticed that innovative companies compete by building better products that customers want to buy."

That's exactly why we buy our storage from NetApp. ;-)

Sun is not a storage innovator; They make cool computers but have never done much beyond reselling other peoples hardware.

I don't like the whole lawsuit business, but I do think Sun has a history of demanding cross licensing deals with outrageous "fees" associated with them.

[CM]

If Jonathan had patented his cookie recipes, then he would necessarily have disclosed enough information in the patent for someone skilled in the art (a baker?) to implement the invention (bake the cookies). So anyone who wanted to could have looked up the patent and found the recipe. Jonathan couldn't legally go after a reporter who happened to point out to the public where the recipe could be found, but he probably could go after Nabisco, if they started selling cookies made with his recipe. He could conceivably also go after individuals who used his cookie recipe - but he'd probably alienate enough people that his cookie business would go down the toilet.

[tim]

If you're such an honest and genuine guy, leading such an innovative and societally aware company, why is your suit filed in BFE, TX?

I have a real problem with you accusing Sun of being dishonest and underhanded, when all the signs point to the problem being you and NTAP.

Sun should be out of ZFS storage business and its products should be kicked out of DCs being most expensive vendor in market. Sun is out of new ideas in storage and rolling on old ones.

[Vociferous]

Has anyone read the comments and seen the ratio of Pro/Con NetApp? I find it very amusing that so few are Pro NetApp.

Its going to be a hell of a lot of fun to watch this go down. I'm sure more then enough people will donate their time for free to help kill these patents. I wouldn't all the involved patents ending up invalid.

[San]

"We filed suit against Sun because after we pointed out the WAFL patents, their lawyers stopped getting back to us."

Why respond with a lawsuit if they backed off?

Dave, I'm assuming you guys have a good ulterior motive to get Sun at the negotiating table.

Looking forward to the endgame.

[Michael Chaney]

Others have pointed this out, I believe, but it doesn't hurt to say it again.

You are confusing copyright law and patent law. They are unrelated. Totally, completely, unrelated. The only vague relationship you could draw is that they are mentioned in the same place in the Constitution of the US.

Sun has released ZFS with an open source license. It's their code, they have every right to do it. Jonathon is correct that it cannot be unreleased, as people have received it under that license. Because it is their code, they have the right to release it as such.

Now, you come along and say "it's encumbered by patents". Fine. That has nothing to do with copyright. They still own the code, even if it's true that you have a patent which covers it.

Your world view is also a little limited. Most places are smart enough to not do the "software patent" game, so really the US is the only place this matters. There are people in Europe, Asia, India, Australia, etc. who are able to use ZFS and other software without worrying about patents.

Your analogy is also dumb. If Jonathon did patent cookies, there would be no secret. Surely you know by now that the tradeoff with a patent is that, while you have exclusive use of an invention, you also have to detail the methods behind it as part of the public patent record. Put another way, patents are always "open source". That's why "open source" only applies to software via copyright law, not patent law.

The analogy that you should have used is where we would be if the SCO case were true. Had IBM really taken code that they didn't own and put it into Linux, then there really would a case where code would need to be "withdrawn", at least as much as practical. The reason would be simple in that hypothetical case: IBM wouldn't have had the legal standing to release such code under the GPL simply because they wouldn't own the copyright. (Obviously, this is hypothetical and IBM didn't do this, just using it as an analogy)

Your confusion of patents and copyrights is really troubling for a person in your position. I pray your lawyers know more about it than you do. Either way, you'd be wise to remove yourself from any decision-making positions regarding this lawsuit. Of course, wisdom would have kept you out of this lawsuit in the first place...

[Bill Todd]

Michael -

I'm afraid that Dave's recent attempt to dumb things down so that the more strident but less competent open-source aficionados can understand them has failed, at least in your case.

If indeed Sun's ZFS software infringes upon NetApp's patents, then Sun's release of that software to others actively encourages further infringement. *That* is why NetApp is demanding that Sun stop doing this, and if Sun fails to stop and is found to be infringing whatever penalty is assessed may well be increased due to this aggravation of their offense.

While Sun cannot 'unrelease' their code, they can certainly *cease* releasing it, and the latter is what NetApp is demanding - as a clear indication to the world that any actual *use* of that code is (or at least may be, pending judgment) encumbered. While Sun could do this voluntarily and temporarily while the case is being adjudicated, the actual legal thrust of NetApp's demand is to prevent further distribution should a judgment be handed down in NetApp's favor.

And I'm afraid that there's no 'world view' at issue here: the suit is being brought in the U.S., and that's the only legal view that matters. You might *wish* that things were different here, but NetApp has every right (and an obligation to its shareholders and perhaps to its customers as well) to work with things as they *are*. Whether NetApp's patents are enforceable in other jurisdictions has always been a matter for those jurisdictions to decide - the only relevance to this case might be the possibility that Sun's release of the infringing code to those other jurisdictions might be considered additional aggravation should NetApp win its case here.

Hope that helps clarify things for you. In the future, you might think twice before casting unfounded aspersions at people who to all appearances understand an issue far better than you do: it makes you look like a fool, and while that impression may be an accurate one might suspect that it's not one you'd like to encourage.

- bill

[Michael Chaney]

You know, Bill, your post would be just a little better if you avoided ad hominem attacks (which you do not once but twice) and actually read the post to which I responded. If you did read it, you would find that the poster equates copyrights and patents, then uses the confusion resulting from that mistake to further his agenda. The idea that confusing patents and copyrights is a result of "dumbing down" is laughable.

Your inability to respond to my points without resorting to name-calling says all I need to know about you. You might want to be careful flinging words like "fool" and "less competent" around, people make think you're talking to yourself.

[Bill Todd]

Ah, Michael: you're even more incompetent than I had supposed - even after being corrected you persist in your misconceptions rather than being willing to reevaluate them.

I read Dave's original post in this thread (that is what you claimed to be responding to, is it not? it's not clear what other post it might be), but it seems that you did not, or at least did not understand what you read. Please quote Dave where he "equates copyrights and patents" or admit that you, quite simply, screwed up (both originally and again here).

If you hadn't already exposed your severe analytical limitations I'd be hesitant to suggest that perhaps you somehow believe that anything called a 'recipe' can only be copyrighted, not patented (despite Dave's very specific use of the latter term) - but if that helps you understand the source of your confusion, I'm happy to have enlightened you.

It seems that you're another of the many here who would benefit from closer acquaintance with a decent dictionary. To disparage someone only constitutes an 'ad hominem attack' if one does so without evidence: otherwise, it's merely making a blunt observation. Even your own disparagement of Dave in your first post wasn't ad hominem, since you believed (albeit incorrectly) that it had an actual basis in the material which you had presented - but had you been more circumspect there, I would probably not have responded quite as sharply.

- bill

[Steely Dan]

"Suppose you steal?" Nice rhetoric.

"Suppose you're a pedofile." Then what.

"Suppose you set a cat on fire."

"Suppose you beat your wife."

Please. When you use loaded, false analogies, your credibility becomes zero.

"Suppose your a BS'er."

Now, that's pretty easy to suppose, actually. We've got some basis to support that analogy.

[Rya]

As far as I'm concerned, it is you that is trying to steal idea's from everyone.

Thank god I live in a country where you'd be laughed out of court.

Open source its the way to develop knowledge and it makes people to learn from that source

Raafee

Open source its the way to develop knowledge and it makes people to learn from that source
by
Raafee