To NetApp Employees and Customers on Sun’s Lawsuit

[Note: This is an e-mail that I sent internally to our employees, with the expectation that they might also share it with customers. Some of it repeats previous posts, but other parts are different. In the spirit of openness, I decided to post here as well.]

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

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

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

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

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

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

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

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

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

Comments

[Pablo Ruiz]

Set WAFL free... Open source it the way ZFS is doing it. You have better chance of gaining more convert and better public opinion. You will still make money selling storage hardware and once people "test" out your WAFL technology and if it is as good as you claim, they will buy support (think RedHat). By the way, just drop this silly lawsuit and get back to serving your customer.

[Sevena]

just an idea: let us all stop that stuff and come back to real life.

Sevena

[Travis Roberts]

Let the games begin.

This is much more fun than watching gladiator :-) or Sunday night football.

[Tim]

The one thing I can't get over is that you keep claiming to be trying to clean up the patent world, and *take the high ground*, yet you filed the claim in the texas patent troll haven. If you really wanted this to be a legitimate case, why not file it in yours, or Sun's hometown?

I've yet to see this addressed...

[max]

@max-fan said:

Sweet. I have fans. I'm loved. That's so awesome.

"Sun's NFS being mediocre. "

Tell you what, let's race. I've got all sorts of Sun gear and a couple filers; do you want to know which ones win?

As for ZFS, Sun's release of public Spec results seems lacking.

"Fishy? Perhaps if you'd bothered to check, ZFS has been on the engineering desks for a good number of years - mentioned in many blogs and mailing lists."

Doesn't mean it's not a WAFL clone. In fact, if you read those mailing lists and blogs you refer to thats really the only conclusion one could reach.

"And just because you obviously don't know Sun's portfolio, doesn't mean that the innovations aren't there."

And those would be what? Last I checked, Sun's high end box was from Hitachi Data Systems (software stack and all).

What's innovative about that?

AS for being a retard; I admit to being so to certain degree. I'm *still* a Sun customer after all ;-). This is besides the fact that I've been burned countless times by their inferior products and lack luster support.

[Zero Admin]

I wonder if one possible outcome of this:
Sun wins. NetApp can't afford licensing costs and gets absorbed by Sun.

[Aidan Thornton]

Dalibor Topic: as far as I know, Sun hasn't licensed its patents to open source software unless it's licensed under their little-used and GPL-incompatible CDDL license, though I may be wrong. If someone created an open source filesystem - or worse, an open source SAN - even vaguely similar to ZFS, I think Sun could sue them at any time for patent infringement at any time.

It doesn't even need to be that similar; the Sun patents are very broad. For example, I think any SAN that has data redundancy and writes modified data to a new area of disk probably infringes, at least with the interpretation that Sun seems to be using. (Of course, I'm not a patent lawyer.)

[TM]

Here's the rub: Anybody who knows NetApp knows that they are not particularly litigious. Further - they're doing pretty well out in the market place. Maybe it's me - but my first inclination would not be to assume that NetApp was trying to screw somebody. I might give them the benefit of the doubt that *they think* their IP has been infringed upon; that their intentions are good (if they *think* their IP has been infringed upon, then they have an obligation to their shareholders to fight). And that's what bothers me about this incredible rush to judgment. Did Sun rip WAFL? Who knows? Has NetApp launched a frivolous law suit to protect its own interests and wrongly screw Sun and ZFS fans? Again, who knows? But we see all these "NetApp = SCO" and "NetApp = Satan" posts - and it's a massive rush to judgment against a company with one of the most satisfied, loyal and downright passionate customer bases in the IT industry. That's just wrong. Unless you can make a claim to have intimate knowledge of the facts of NetApp’s lawsuit, I struggle to understand how such a rush to convict them before their day in court is anything but self righteousness itself. Talk about being ahead of one self. And if that's viewed as "mighty indignation", well – better that than hypocrisy. Oh dear, how did I get back up here on my soap box again..... :).

[Alan Jones]

Hi Dave,

While I appreciate that you must believe in your cause I felt I should share a couple of observations.

The first is that you're treating your readers like idiots by using language that attempts to frame the issue. Claiming Sun's code is stealing from you is false. The best you can do is claim it infringes your patent. Sun wrote the code, they clearly own the code. i.e. It is not your code. So claiming they are stealing from you is forcing the word steal in purely for its biasing, emotive value.

I would not have taken further look at the claims had I not encountered such poor attempts to sway my opinion with colorful language. Seeing such a simplistic approach to influence my opinion convinced me to take a look at the patent in question.

The wording of the patent seems deliberately opaque, I imagine in order to make it as broad as possible and reduce the risk of the patent approval process throwing it out on grounds of obviousness. Perhaps I did not understand it fully, but I'm a coder so at least had some idea of its context. It appears to say that in order to ensure something doesn't accidentally get deleted don't remove the old version before you're written the new one. In other words if you don't want to walk with bare feet don't throw out your old shoes before you've got new ones. I've got to say there is no way I'd ever have let that past the obviousness test if I were approving the patent, nor would I support it as the basis for a case if I were on the jury.

Now perhaps I have misread something, but that doesn't matter with regards to the image you're projecting. If you want to avoid giving the impression of aggressively using insubstantial patents then you'll need to start by ensuring you use language that seems honest and direct. There will be more technical readers around and you shouldn't be shy about the technical details. If there truly is something to your claim it will become apparent very quickly.

Cheers,

Alan.

[Andy Ortlieb]

"Legal" or not, all I can hope is that public creativity and innovation will not be defeated.

Philosophy is uninteresting.

ZFS could potentially become one of the most powerful pieces of modern computing.

It's evolution. Deal with it.

[Orlando Native]

I've only got a few observations here...

1) Choice of venue for the original complaint seems sort of odd. Both Sun and NetApp are headquartered in California, and I doubt either of them is officially listed as having 'incorporated' in Texas. So why this suit was filed in a court well known as the preferred venue for so called 'patent trolls' is unclear, unless, as some folks have speculated, NetApp is truly fearfull of bringing the suit in some more technically savvy locale.

2) As far as IP goes, you don't *ever* want to start litigation with a company who is known to throw substantial $ into R&D. Those companies tend to have patents out the ying-yang; and not necessarilly only in their 'core' areas. Sun certainly does, just like IBM, ATT, Xerox, and a number of others. No matter whether you've got the clearest, most detailed and concise patent in the history of the USPTO, they've probably got dozens, if not more, in the same general area - and it's *hard* not to be found in infringing status on *something*.

Especially in this case. IBM and others have pledged to allow use of many of their patents to defend 'open source' software. So, theoretically, it's not *just* Sun that NetApp is taking on here. IBM has been developing and researching storage since before NetApp was even a gleam in it's founder's eye. And Sun, while storage hasn't exactly been it's main focus (though they've no doubt inherited a lot of IP in that area from the StorageTek purchase); certainly has enough IP in the networking arena (and, remember, NAS *is* basically networked storage) to probably create a huge minefield for *any* player in the NAS space.

So I just can't see anything *good* come of this, from either perspective... ...but certainly not NetApp's.

As for Dave's note that "No Fortune 1000 company has ever been shut down due to patent infringement"; well, that may be true. But few fortune 1000 companies are really that 'specialized'; in terms of their product line. It's one thing to have a storage 'division'; amongst other product lines, it's quite another when basically the only thing your company sells is storage.

[Bill Todd]

Hi, Alan -

I suspect that you might benefit from the use of a dictionary (a U.S. dictionary, just in case you're somewhere else where definitions might slightly differ from the context in which this discussion is taking place). The first that springs to hand lists, as its first definition of 'steal', "to take or appropriate (another's property, ideas, etc.) without permission, dishonestly, or unlawfully..." So while I recognize that it has become fashionable among those who like to 'appropriate' (do look that up as well if you're unclear as to its definition) legally-protected intellectual property without bothering to do so in the manner required by law to claim that they are not 'stealing', this claim is in fact false and Dave's use of the word 'steal' is entirely appropriate (a completely different use of the same word - English is like that, I'm afraid).

Furthermore, while Dave used the word 'steal' in his cookie analogy (and once arguably more generally but immediately following that analogy), he studiously used the word 'infringe' everywhere else while discussing the actual issue with Sun. Most browsers provide a 'search' facility to detect character strings on a Web page: I suggest that you make more frequent use of that in the future.

So castigating Dave for "treating [his] readers like idiots" would seem inappropriate (again, the different meaning of that word) even if it were true (though the truth of that assertion seems at least highly questionable): a significant percentage of the 'readers' squawking here actually *do* seem to be something resembling idiots, since even addressing them in the simplest possibly language apparently fails to enlighten them (or, in your specific case, where your use of even simple language with proper meanings seems to be a challenge).

Ah - that felt good (I confess, perhaps just a tad sheepishly). Now to matters of more substance:

You appear to be making your first acquaintance with U. S. patents here. If you have the misfortune to become better acquainted with them, you will find that they are virtually *all* broad, opaque, and generally inaccessible to those unversed in the arcane minutiae of patent language. There is probably a much better way to run this railroad, but unfortunately this is what we're currently stuck with - so don't blame NetApp for following its rules.

In fact, there were almost certainly aspects of NetApp's original design that were eminently patentable: it was a novel combination of existing (and AFAIK one or two arguably new) hardware and software technologies to achieve a result greater than the nominal sum of its parts. That said, I wouldn't perform the investigation (an investigation which you haven't even scratched the surface of) required to determine the likely enforceability of this particular set of patents without the incentive of significant monetary reward (including a major pain-in-the-ass premium).

If Dave has not been as 'honest and direct' as you might wish, I suspect it's because NetApp's lawyers won't allow him to be lest his words be misinterpreted by laymen in a manner that might jeopardize NetApp's case. If that's not what's holding him back, I join you in hoping that he'll get very specific. In any event, I applaud him for his readiness to discuss this matter with any and all, pro or con, here (I applaud Jonathan Schwartz for a similar approach, by the way, though consider Jonathan's own statements to have been far more spin-like in character than Dave's have been).

And now to Andy - Hi!

"Public creativity and innovation" are in no way under attack here: the question is whether ZFS qualifies as such, or as (at least in part) something more resembling theft. If the former, it will go forth and multiply if indeed that is justified; if the latter, it will find its illegal portions suitably constrained.

Deal with it.

As for ZFS's potential position in modern computing, perhaps you'd better leave that to technical types better qualified to assess it.

- bill

[Dalibor Topic]

Sun have licensed parts of their patent portfolio relevant to ODF and some other technologies under covenants that hold for any implementation. They have also published parts of ZFS under the GPLv2.

I haven't seen NetApp do anything similar.

[Bill Todd]

Balibor -

If your recent post above has some relevance to the merits of what is in fact a patent dispute between two corporations (that being the subject of the discussion here, after all), it has managed to escape me.

Not to mention the fact that it involves a highly-inequitable comparison. If Microsoft donates a great deal more cash than Sun each year to various forms of charity, for example, does that make it somehow a 'better' company (e.g., more worthy of your support, even if that support is completely unrelated to a specific issue) than Sun, or does it simply reflect their relative sizes and profitability?

People really ought to stop offering up knee-jerk reactions based on their personal predispositions and start actually looking at the specific issues here. Of course, reminding them of this usually doesn't help much, but it's still something that should be said.

- bill

[Jai Hyuk]

Dictionary Boy,

"The first that springs to hand lists, as its first definition of 'steal', "to take or appropriate (another's property, ideas, etc.) without permission, dishonestly, or unlawfully..."

Naaah, Man. Even if someone copies your homework at school you don't say they stole it. Is this the 'Texas Advanced Patent Troll's Dictionary' you have? And did you ask for permission to plagarize its content :) ?

In a dispute involving code, an analogy using cookies comes off as patronizing at best, and darl-ish self deception at worst.

Steal can also be 'when a defensive player legally gains control of the ball from an offensive player'. That's something Sun just MIGHT do.

[anwaya]

...We aren’t against open source, and we aren’t even against non-commercial use of ZFS. The number one rule of open source is that you should only give away stuff that belongs to you. ...

To paraphrase: "Free's only free as in beer." That's just not going to fly.

[Bill Todd]

Your analytical faculties need significant improvement, Jai (no surprise there). Whether you'd correctly say someone 'stole' your homework would of course depend upon whether you let them copy it or they did it without permission.

The dictionary in question was Webster's New World College Dictionary, Fourth Edition, simply because it was the one within reach at the moment I posted. It blows its own horn a bit by proclaiming on its cover "The official dictionary of the Associated Press", and while that doesn't leave me speechless with admiration given a choice between their definition and the unsupported opinion of some random Web babbler with an obvious agenda I really don't have much difficulty deciding which is more credible.

- bill

[Jai Hyuk]

Proper attribution, Bill! You're getting the hang of this IP stuff!

We're all random web babblers here... with the obvious agenda of wasting time, I guess... :)

[Contrarian]

Pretty fast with the judgement there, Bill. The real question I want answered is, what were the patents NetApp wanted to buy from StorageTek and why? Was it violating them? Is it still?

Until that's clear this whole action looks to me like NetApp trying to bully their way out of their own patent violation behavior. Except trying to bully a vast patent holder like Sun is dumb beyond belief and acts directly against the interests of NTAP shareholders.

[Bill Todd]

Please speak for yourself, Jai: not *all* of us here are random Web babblers. File systems are a special interest of mine, and I do keep fairly comprehensively up to date on them via the professional journals and conferences.

Not to mention the fact that I've been designing and implementing file systems off and on for over thirty years, starting with a decade at DEC, then with a brief stint at EMC followed by several implementations on NT and its descendants, and most recently, before I even heard of ZFS, on a highly-scalable, high-performance/availability, self-managing distributed system whose local component included all the features that ZFS boasts of with an arguably superior design. I've designed and written things like distributed cooperative caches, distributed transaction managers, transaction journals, and record managers, as well as worked cooperatively with others on virtually all aspects of file system design and implementation plus related technologies such as underlying storage and physical-layer database organization.

My guess is that there could be on the order of 100 people in the world who might know more about the subject than I do, but aside from Dave there's no evidence that any of them have been chiming in here. Of course, there are a far larger number who might know *some* things that I don't, so I keep an ear peeled: good ideas can come from anywhere, after all.

Perhaps the above helps explain why I consider myself fairly well-equipped to understand just who's the innovator in this discussion and who's the imitator - though, as I've consistently said, I have no opinion (nor the desire to take the significant amount of time that it would take to create an informed one) about the detailed merits of the patent squabble. I've also never had any personal connection with NetApp, nor with Sun: my interest is solely in their respective technologies, and both have pieces worthy of more respect than they've been getting.

Incidentally, I don't fault Sun's engineers for any NetApp patent infringement that may have occurred (nor, for that matter, NetApp's for any StorageTek patent infringement that might have occurred, though since the StorageTek patents are probably block-storage-related rather than file-related the latter may be less likely): there are many routes via which one may arrive at an implementation that don't run directly through someone else's, and the fact that the end result might inadvertently infringe can be easy to miss.

My guess is that Dave may get as frustrated as I do with the 'random Web babblers' here but really isn't in a position to be as candid (or perhaps blunt would be a better word) as I can be. If so, I'm happy to step in to help take up the slack: aside from admiring the technology that he helped create, I do tend to sympathize with a company with no history of aggressive patent litigation when they're attacked by a far larger competitor whose public utterances in this matter consist mostly of bluster and hype and which has proven uninterested in negotiating a mutual licensing agreement.

- bill