Current Status of the Sun/NetApp Patent Lawsuit

I hadn’t planned to blog any more on the Sun/NetApp patent litigation, but Mike Dillon, Sun’s General Counsel, has recently made some very optimistic posts (here and here), and I need to respond. Dillon shared the results of some pre-trial wrangling—Markman hearings and preliminary Patent Office decisions—but sometimes when you focus on intricate details, you miss the big picture. (For background on the lawsuit, see here, here, and here.)

To me, the best indicator of strength is to look at which party wants to get on with the case (the one with a strong position), and which party consistently drags its feet and tries to delay (the one with the weak position).

Sun is requesting a “stay,” which is a request to put our claims on hold and delay the trial, because the Patent Office has issued a preliminary rejection of claims in 3 of our patents (out of 16). Such a ruling is not unusual for patents being tried for the first time, and there are two ways to resolve the issue. Waiting for the Patent Office, which is what Sun wants to do, is the slow way. The patent office currently has a backlog of 730,000 patents, and they can’t hire fast enough to close the gap. Waiting could take years. The legal system isn’t always fast, but it can be. When NetApp agreed to relocate the case to California, we did it on the condition that we’d get to trial relatively quickly. Dillon mentioned issues with three patents, but NetApp currently has 16 WAFL patents that we believe apply to ZFS, with more on the way. We believe that we have a strong case, and we want to get it resolved.

As I have said in earlier blogs, I like open source. In fact, I have personally written and contributed open source code! NetApp has also made many corporate contributions. However, I believe that open source contributors must always follow one critical guideline: Only give away things that belong to you. This is where we think that Sun isn’t playing by the rules.

Here’s the big picture. If you were Sun, and if you were confident in your case, wouldn’t you want to clear the name of ZFS as quickly as possible, to reassure your customers and partners? By contrast, if you were NetApp, and you had no confidence in your patents, wouldn’t you try to slow things down to maintain the cloud of doubt as long as possible? I believe we have a strong case, but whether we are right or wrong, isn’t it best for everyone involved to get the answer as quickly as possible?

Comments

[Keith Williams]

Your logic makes little sense and it seems clear you are not familiar with BOTH the jurisprudence and practical legal tactics when it comes to these kinds of patent law disputes.

1. Sun is a large company and in these types of suits, independent of the real legal merits of any claim, the larger company will make every attempt to stall and bleed-out the smaller--esp. considering the relative size differences between Sun and NetApp.

2. Sun doesn't care about name-clearing. At this stage of things, it's a non-issue with their other revenue fights and overall business model. Given Sun's history and the current business climate, NetApp is the one who needs to be concerned about avoiding the "patent troll" label--accurate or not. For reference, please recount and/or research the daft behavior of SCO during the Linux kernel case.

3. Focusing on the "intricate details" is what patent-law is ALL about and ANY case of sufficient merit will result in these kinds of case-law manipulations, fine-grained rulings and IP depositions. One would hope that your retained counsel would've already informed you regarding the typical workflows of this kind of litigation.

I urge you to scrum with your PR and legal folks before posting again to avoid future public embarrassments. You're doing your company a dis-service by highlighting its ignorance of this process. Unless you have something concrete and substantial (i.e. a ruling, injunction, etc.) gained from your efforts, best to keep your powder dry for the big battles (wins or losses) not these early minor skirmishes. You want to control the news cycle, not be manipulated by it.

For the record, I am not materially invested in the outcome either way (see my earlier post http://tinyurl.com/6ckwac).

Unfortunately, your words have been making the rounds on the various software development boards. Developers just want to see ZFS deployed in a robust a manner as possible and as quickly as possible. The "pr image" right now is that NetApp is hampering efforts on both fronts.

[Lee Razo]

"independent of the real legal merits of any claim, the larger company will make every attempt to stall and bleed-out the smaller"

Wow, the open source ethos has really changed since I was in college...

[Che Kristo]

Dave...maybe I am oversimplifying things but wouldn't Sun want to drag-out/delay the case is they are endeavoring to have your patents invalidated. Can you please clarify your logic here.

[Alan]

Dave - you miss the fundamental problem in all of this. You talk about "ownership". What right do you or Sun have to "own" what is nothing more than pure thought, an idea, an equation. You are just another example in an industry that blows shareholder capital on litigation not innovation.

Someone has to sort out the US patent system - and soon - or there won't be a US tech industry.

[zoobab]

Let's say I am an open source developer, and I write some code here on your blog like this one:

#! /bin/bash
echo "this piece of code violates NetApp patent XXX"
EOF

Do you think software developers expression and freedom of publication can be restrained by patent law?

What is NetApp position on the First Amendment and software patents?

Do you believe that authors of copyrighted works can fully benefit of the fruits of their work under the Berne Convention when software patents can limit what they can do, especially selling their code?

[Jeff Schroeder]

"""Sun is a large company and in these types of suits, independent of the real legal merits of any claim, the larger company will make every attempt to stall and bleed-out the smaller--esp. considering the relative size differences between Sun and NetApp."""

In a publiclly traded company, one of the more common "size" factors is the market cap. Lets do a little research here:
http://finance.google.com/finance?q=NTAP current market cap = 3.95 billion
http://finance.google.com/finance?q=JAVA current market cap 3.21 billion

So based upon the markets, NetApp is the bigger of the two. Please stop spreading fud about something you are clueless on.

[Keith Brown]

"What right do you or Sun have to "own" what is nothing more than pure thought, an idea, an equation."

Dang right! You tell it like it is Comrade Alan.

And while we're on the subject, how *DARE* that J.K. Rowling woman make so much money off of her "pure thought" about some silly kid who finds out he's actually a wizard. I mean... It's all just a bunch of words on pieces of paper, right? How can she possibly claim to own that? Jeeeesh.

Let me tell you.... Come the revolution comrade, the likes of Hitz and Rowling will be the first ones up against the wall, and we can finally get on with farming our turnips in peace!

[James Sutherland]

As a coder with little legal background (one course in IP law while studying CS), it seems to make much more sense for the one with the stronger case to delay. If Sun gets the patent office to toss out another patent, that's one less battle to fight in court in the first place; the worst case for them is that the PTO upholds the patents and Sun has to go to court over them anyway - just as they would do if they went to court now without waiting.

If I were Sun, I'd wait for the PTO to rule on each patent - exactly as Sun seems to be doing. If I were Netapp, I would prefer to go to court sooner - particularly if I feared losing some or all of the remaining patents if they get examined beforehand.

I do think Netapp is making a big mistake here. ZFS, with appropriate hardware, is a potent threat in the sub-100 terabyte market, which covers a great deal of ground - but the court room really doesn't work well as a venue for battles in our industry, as Netscape and SCO would tell you if they had survived the attempt.

I also suspect many of Netapp's customers are also Sun customers, including the large customer from whom I first heard about this battle - and not exactly happy about it.

[TEA]

What really worries me is the fact there's an argument. We have fab technology but we don't promote it. Forget about "owning" and start "giving". A bit more positive please

[James Dickens]

And why is the patent office backlogged? because companies like netapp submit freviolous and baseless patents, like the 3 that have been thrown out all ready.

This is the real reason you want a rush to judgement, your companies assets are in danger and you don't wan the truth you just want too steam roll justice. Which is evidenced by the whole lawsuit, first filed in TX, where the courts are more freindly to bogus IP lawsuits, and not in CA where both you and Sun are based.

[Keith Williams]

@Jeff Schroeder My apologies. I stand corrected on the relative size argument.

It appears that SUN is adopting a "low duty cycle" defense and letting the relative merits of the existing filings work their way through the PTO. Aside from the venue change, their public proclamations seem to be taking nearly a prima facie route. Given the nascent adoption of the technology, this would be typical of a dependent who feels they have an extremely strong case.

I must've missed something, but I don't see any FUD-spreading in my post. The fact is ZFS adoption remains effectively on-hold. It IS, in my opinion, an inevitable technology and I have zero financial stake in whichever party prevails.

Additionally, having been involved in several patent filings and one patent defense case, I am intimately (viscerally) aware of the frustrations and machinations that occur on BOTH sides of this kind of dispute. Please stick to the issues at hand and keep personal attacks off of this corporate blog.

[loquitur]

It's surprising that NetApp doesn't heed the lessons of
Sun vs. IBM, recounted in Gary Reback's classic piece
"Patently Absurd":

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

Perhaps there was a similar conference table/whiteboard
scene acted out between SUNW and NTAP. Yet this time,
the underdog CEO decided to go cowboy, ignoring the
law-of-large-numbers statistics of one small pile of
bogus patents, up against a larger pile of bogus patents.

[KPC]

Dave, Great article.
Two great tech companies fighting on patents are really tough. I am fan of both the companies here.

Sun does not seem to live up to the name they have created in the market. The 800 pound gorilla is sinking and looks to take on NTAP. Delaying the patent fight does not make Sun any good. ZFS does not make their product great either. Sun should concentrate on Server and Java business. One foot in water and One foot in air makes you dumb Sun.

NTAP should continue to innovate and push the boundaries. Size does not matter. EMC, HP, IBM are having a run for their money after NetApp entered the FiberChannel.

Good luck Dave.

-KPC

[Jeff Schroeder]

@Keith Williams: Yeah I came off as overly harsh. Hence the reason I emailed you offlist.

@KPC: If NetApp wanted to do something really funny, they would include dtrace and zfs in OnTap. At it's core it is just a bastardized BSD and the CDDL would allow them to do that.

I would LOVE to see something like this on one of our many fas3040s to troubleshoot storage problems:

filer> priv set advanced
filer*> dtrace ...

Hopefully you read your comments from happy customers dave!

**A weaker party goes to a stronger party!**
That's the rule.

So whoever started this( SUN or NETAPP) can guess the end result of this lawsuit right now.

I love both.

[Aidan Thornton]

The root problem with taking it to the USPTO is that it is just a delaying tactic. For better or worse, the NetApp patents have a lot of specific detail (basically, there's enough information to write your own WAFL clone from, as far as I can tell), and I doubt Sun will be able to do more than force NetApp to assert more specific claims. I'm not convinced that this will help Sun with the case.

Also, I'm still trying to figure out how Sun got away with patent 6,873,630. I mean, a patent on bonding multiple network connections together, in 1999? That's just taking the piss.

Friggin m****s seem to miss the point:
Sun violating NetApp property and trying to open source it is like you giving your neighbours' car to charity without their consent.

[Peter Reiser]

I have the idea again that there are two ways to look at this issue here:

1) Getting a patent for an idea takes away any other development by another company. This would be nasty for car manufacturers when someone owns the patent on the wheel.

2) SUN creates a new filesystem, ZFS, thereby using patents owned by NetApp, then gives it away to the Open Source community so further development is free of charge for them. By using that same filesystem themselves they get a commercial advantage by simply reducing costs on R&D. This is against all ideas of Open Source, unless hacking, cheating, ... are now justified in the GNU or GPL.

Robin Hood does not live at SUN headquarters. It is the sheriff of Nothingham.

Remember the words of Dave: only give away what's yours.
In that sense I think it is nice to hear NetApp doesn't want to hunt the OS community at all.

OS was created to break the commercial monopoly. Do not allow those same companies to hijack that for their own benefits.

P.

[Tom]

@Keith Brown: Equating copyright on creative literary works and patents on software algorithms is just plain stupid. Now if Rowling had a patent on the idea of some kid learning he was a wizard and his adventures while discovering how to use that power, such that no other author could write a similar story, then you might have a point, but she doesn't and you don't.

The problem with software patents is that:

A. 20 years is a totally unrealistic length of time for a software patent to be granted. Given the rapid changes in technology, it just stifles innovation.

B. The fact that a non-producing entity (aka patent troll) can buy up patents and sue people who are actually producing software is completely idiotic. This is the most serious flaw in current patent law.

C. The purpose of a patent is supposedly to allow people to implement an invention (after paying the inventor appropriate royalties), thus expanding the knowledge in a particular field. Software patents are notorious for being so obfuscated in legal terminology that they don't achieve this purpose, so instead of expanding knowledge, while protecting the inventor's rights, they instead hamper innovation. Software patents should be required to include workable source code that demonstrates the technique being patented or they should be rejected out of hand.

Also given the explosion of software patents in recent years and the fact that it is next to impossible to do a search of them to ensure that software being developed doesn't infringe, coupled with the fact that only a lawyer can decode most of them makes software patents a total failure. I can only hope that the Supreme Court will eventually do something about this, so that the software industry in the US can not lose it's competitive edge. Software patents are a blight on the US software market and should be either substantially reformed or be done away with altogether.