Sun and NetApp Lawsuit

Am no fan of patents or patents lawsuits, but this lawsuit is going to provide some entertainment value for months to come.

It is quickly moving into "he said, she said" territory. NetApp claims that Sun started this thing when they approached NetApp to monetize some patents:

Like many large technology companies, Sun has been using its patent portfolio as a profit center. About 18 months ago, Sun’s lawyers contacted NetApp with a list of patents they say we infringe, and requested that we pay them lots of money. We responded in two ways. First, we closely examined their list of patents. Second, we identified the patents in our portfolio that we believe Sun infringes. With respect to Sun’s patent claims, our lawsuit explains that we do not infringe, and ---in fact--- that they are not even valid. As a result, we don’t think we should be paying Sun millions of dollars.

If this is true, Sun brought this upon themselves.

Of course, on the other hand, Sun claims that this was not the case:

Many of the claims raised in the lawsuit are factually untrue. For example, it was NetApp who first approached Sun seeking to acquire the Sun patents NetApp is now attempting to invalidate. It is unfortunate that NetApp has now resorted to resolving its business issues in a legal jurisdiction (East Texas) long favored by "patent trolls."

BURN!

And from Jonathan Schwartz:

NetApps first approached StorageTek behind the cover of a third party intermediary (yes, it sounds weird, doesn't it?) seeking to purchase STK patents. After Sun acquired STK, we were not willing to sell the patents, We've always been willing to license them. But instead of engaging in licensing discussions, NetApp decided to file a suit to invalidate them. To be clear, we never filed a complaint or threatened to do so, nor did anyone, to the best of my knowledge, in the ZFS community.

Sun also positions this as an attack on open source (since ZFS is under some open source license, the one that is incompatible with the Linux kernel GPLv2):

NetApp's legal attack against Sun's open source ZFS solution which is freely available in the marketplace is a clear indication that NetApp considers Sun technology a threat, and is a direct attack on the open source community.

So software patents suck, we all know that.

One one side, if there is any truth to NetApp's claim that Sun tried to monetize their patents by going on the offenseive this seems to be a case of Sun bringing this upon themselves.

NetApp could respond by issuing a patent covenant for users of open source operating systems (which would include Linux and OpenSolaris, but would still allow them to monetize from the Solaris uses).

Someone on Jonathan's blog raises a good point:

I find your comments contradictory.

"First, Sun did not approach NetApps about licensing any of Sun's patents and never filed complaints against NetApps or demanded anything." on the one hand, and "... we were not willing to sell the patents, We've always been willing to license them."

Can you please address the contradiction between "never demanded" and "always willing to license", Since "Willing to license" is usually simply a code word for "demanding payment for licensing."

If Sun's position that NTAP does not in fact violate the patents in question, and Sun does not violate NTAP's patents, why can't Sun affirmatively state that instead of leaving the issue unresolved?

Warmest Regards,
Max

That is one good question.

On the other side, perhaps NetApp has turned into a patent troll. And there are some indications from NetApp's blog. This is worrysome:

On the other hand, I won’t pretend that we would never have sued if Sun hadn’t approached us first. We focus on innovation as a company, and we do intend to defend our intellectual property.

[...]

Our interest is on commercial use of ZFS. That is, we are concerned with companies who take our IP and turn it into products that they make money on. For obvious reasons, we are especially concerned about commercial use of our IP that would compete with NetApp.

This seems to undermine NetApp's initial claim.

In the meantime, am buying POPC-orn shares, I predict this drama will have the same ratings as the second season of Lost.

Posted on 06 Sep 2007 by Miguel de Icaza
This is a personal web page. Things said here do not represent the position of my employer.