The NetApp Litigation

The shift from “proprietary” to “open” business models continues to accelerate. Nowhere is this more apparent than with software. Sun went through this transition several years ago. It was a difficult undertaking (a serious understatement). However, we saw the direction of the industry and committed the company to the transformation. It's probably one of the most important and positive decisions we've ever made. Unfortunately, for some companies this same course remains unthinkable.

Last month, Network Appliance (NetApp) sued Sun alleging that Sun's ZFS technology infringed NetApp patents. Today we filed our response. A PDF copy can be found here.

We had no notice of NetApp's intent to bring this litigation and found it strange that they chose this course so unexpectedly. We were also surprised by NetApp's attempt to impede the adoption of ZFS. Obviously, they have business reasons why they believe they need to so so; however, ZFS was announced over three years ago. It has been in the open source community since November, 2005. So, why now?

We invest an enormous amount of money on innovation – on average 15% of revenue. As part of this, we also invest in various intellectual property protections for this innovation, including patents, copyrights and trademarks. This investment allows us the flexibility to protect ourselves and others. In this case, we intend to use our very broad and extensive patent portfolio to protect the open source community that has embraced ZFS and made it so successful.

I've previously shared my perspective on litigation. The points I made then apply equally to this case, including that a non-judicial resolution is always preferable. To this end, previous to filing our response, I spoke to my counterpart at NetApp. We had a very polite and engaged discussion about what lay ahead for both companies. However, in the end, we were not able to see a path to resolution.

We have reviewed the NetApp claims against ZFS and we believe them to be without merit. (To those of you who have already been sending us prior art - “thank you”. To those of you who would like to lend your support, please go here.)

In our response we address not only the case brought by NetApp, but we have also brought our own claims against the entirety of their product line and are seeking both damages and injunctive relief. It's a responsive action we take not because we want to, but rather because we are forced to. That said, we would like to use this litigation not only to protect, but to promote innovation as well. To this end, we have announced that we will be donating a portion of whatever Sun recovers to organizations supporting the open source community.

It is disappointing that we have to turn to litigation. But, it's clear that NetApp views the open source world much differently than Sun. We've made the transition – they can't contemplate it.

Comments:

I believe NetApp's CEO made claims that Sun (or StorageTek?) sued them first. NetApp then filed a retalitory suit against ZFS.

Is this statement true?

Links to the NetApp blog postings:

http://blogs.netapp.com/dave/2007/09/netapp-sues-sun.html
http://blogs.netapp.com/dave/2007/09/litigoperation-.html
http://blogs.netapp.com/dave/2007/09/sun-patent-team.html

Posted by David Magda on October 25, 2007 at 03:16 AM PDT #

@David Magda: I suggest you read the PDF response that Mike has linked to above, as it clearly states the answer to those claims. (Synopsis: the statement you cite is untrue)

Posted by Simon Phipps on October 25, 2007 at 06:42 AM PDT #

Very interesting the way Sun is playing this - everything out in the open. Tear them a new one :)

Posted by Dick Davies on October 25, 2007 at 07:49 AM PDT #

Wonderful approach that Sun has taken on this rather unfortunate litigation. Thanks for linking the legal documents here and I've blogged about it as a good lesson for others.

Posted by Kempton on October 25, 2007 at 08:30 AM PDT #

Are you still on time for a mediation? It looks like you are heading forward to a long and expensive litigation.

Gastón Bilder - International Legal Counsel

Posted by Gaston Bilder on October 25, 2007 at 08:44 AM PDT #

Groklaw has started covering this case (http://www.groklaw.net/article.php?story=20071025004033835).

Posted by James McPherson on October 25, 2007 at 05:59 PM PDT #

Mike,

The http://www.sun.com/lawsuit/zfs/ page cites three "particularly spurious patent claims." Would you care to elaborate on WHY these claims are particularly spurious?

Also, as I noted to Simon, if you want to bust the first patent on the list you might want to talk to folks that made software for WORM drives that made those drives appear to the OS as rewritable drives, e.g. Corel. While it worked at the virtual disk level instead of the file system level, the concept is very similar if not exactly the same. And that software was available from some vendors as far backs as the late '80s.

Posted by Swashbuckler on October 26, 2007 at 03:57 AM PDT #

"" ZFS was announced over three years ago. It has been in the open source community since November, 2005. So, why now? ""

The answer is obvious.....

They know ZFS is about to get MUCH better over time and render them irrelevant.

They know they are finished and this is a move of desperation. They're trying to gum up the works, but its only a matter of time.

Last one out of Netapp headquarters, turn out the lights!!!

Posted by solaris on October 26, 2007 at 08:38 AM PDT #

"" ZFS was announced over three years ago. It has been in the open source community since November, 2005. So, why now? ""

The answer is obvious.....

thnx

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