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?

