Monday Oct 06, 2008

Just one more thing.

I promise, I do have other subjects to write about; however, immediately after my last blog we received some additional news of interest concerning the NetApp litigation.

After NetApp filed its lawsuit to halt adoption of Sun's open source ZFS technology, we responded by filing reexamination requests with the PTO citing the extensive amount of highly relevant prior art that was not disclosed or considered when NetApp originally filed its patents. The patent office clearly agreed with the relevance of this prior art, as demonstrated by its rejection of the claims across all of the reexaminations. Of these patents, three have been described by NetApp as "core" (US Patent Nos. 6,857,001; 6,892,211; and 5,819,292). Here's the current status of each of them:

NetApp Patent No. 6,857,001 - The PTO rejected all 63 claims of the patent based on 10 prior art references provided by Sun. In addition, the trial court has agreed to remove that patent from the litigation for now pending the final reexamination by the PTO.

NetApp Patent No. 6,892,211 - The PTO rejected all 24 claims of the patent based on 12 prior art references provided by Sun. There is currently a request pending before the trial judge to stay this patent from the litigation as well.

NetApp Patent No. 5,819,292 - And late last week, we were informed that the PTO has rejected all of the asserted claims of this patent relying on at least two separate prior art references out of the many provided by Sun. (The examiner felt that to consider the other references would be "redundant".)

Some may recall that the '292 ("WAFL" technology) patent was what NetApp's founder, David Hitz, originally highlighted on his blog as being innovative and infringed by ZFS. However, what this litigation is proving is what we have known all along - ZFS is a fundamentally different, game changing technology.

It's the same thing we hear from our customers.

Thursday Oct 02, 2008

More on the NetApp litigation

I recently read Judge Laporte's Order Construing Claims in the NetApp v. Sun litigation. Judge Laporte is the United States Magistrate Judge who is hearing this case in the Federal Court for the Northern District of California. Reading the order was again a reminder of the breadth and diversity of cases that judges are called to consider. These include everything from antitrust, personal injury and employment lawsuits, to cases involving conflicts over ERISA and some even more unique disputes.

Which makes it all the more impressive when a judge is also able to understand and render a decision relating to highly complex technologies in a patent case as part of a Markman hearing. For those who don't practice in this area, a Markman hearing (taking its name from the case of Markman v. Westview Instruments, Inc.) is a pre-trial procedure in which each party presents briefs, tutorials and expert witness testimony to establish the meaning of key terms in disputed patents. Aside from the actual trial, the Markman hearing is the most important part of a patent infringement litigation.

On August 27, 2008, the Markman hearing was held before Judge Laporte. In dispute were fourteen phrases in seven patents (four asserted by Sun and three by NetApp) that required the court to determine the meaning of terms like "Domain Name", "Non-volatile Storage Means" and "Root Inode", among others. Given the complexity, we were impressed when only two weeks later, the judge issued her order.

And, we were very pleased.

In summary, the court agreed with Sun's interpretation on six of the disputed terms (two of which the court adopted with slight modification) and with NetApp on one. As to the remaining terms, the court either formulated its own interpretation or requested that the parties propose a further construction (i.e. definition). If you want to read the Order from the Markman hearing you can find it here.

Most significantly, the Court found each of the asserted claims in NetApp's 7,200,715 patent relating to RAID technology to be "indefinite" - meaning that someone with experience in this area of technology could not understand the limits of the claimed invention. With regard to NetApp's '715 patent, the court agreed with Sun's position that the claims of the patent are flatly inconsistent with and impossible under the teaching of the patent specification. In effect, unless NetApp appeals and this finding is reversed, the '715 patent is effectively invalidated in this case and against others in the future.

In addition, the Court's findings on the terms "server identification data", "domain name", "portion of a communication" "element of a communication" and "completing a write operation within a local processing node" further strengthen our position that the processors, network interface and systems management software used across NetApp's product line infringe Sun's patents.

Meanwhile ZFS and OpenStorage continue to gain momentum.

Thursday Apr 10, 2008

For your use

Last fall, we released a revised version of the Sun Contributor Agreement. It's part of our work to take a fresh look at all of our agreements. The feedback from the open source community has been very positive. So, now we've made it available under a Creative Commons attribution-share alike license for others to use with their open source projects

Tuesday Apr 01, 2008

Do any other GCs have this issue?

In the category of "things they don't teach you in law school".

This morning, our CEO stops by with an urgent request for legal support. Major litigation? Large strategic acquisition? Not quite. Instead, he asks me to review a blog he wants to post as an April Fool's Day joke.

Like I've said, my job's really different...

Wednesday Jan 16, 2008

Accelerating the Redshift

Last year, Greg Papadopoulos used the word “Redshift” to describe a new model for how Sun looks at the world of computing. Since that time, this word has helped to crystallize how we view view our products, customers and market opportunities.

When Greg refers to the Redshift (a term that refers to the frequency of light waves in an expanding universe), he is describing a way of segregating customer applications into two broad categories. The first is the group of applications for which desired efficiency gains and decreases in cost are satisfied by standard increases in CPU processing power. The second are those applications that require compute resources that are expanding at a rate greater than Moore's Law. This latter set of applications is what we refer to as the Redshift. Many newly formed and rapidly growing companies have business models based entirely on a single application of this type (think of YouTube or Facebook). For these customers power and scale are the primary areas of focus – not CPU speed. As result, the IT industry is increasing its focus on multi-threading, utility computing, virtualization and distributed storage.

Not surprisingly, given the velocity of their growth and the fact that many of them are true “start-ups”, a large percentage of Redshift customers rely heavily (if not exclusively) on open source applications. One of most broadly deployed is the MySQL database. Founded in 2001, MySQL has become an icon in the open source world - it's the "M" in " LAMP". It's also the database of choice for some of the world's best known Redshift customers – and traditional companies as well.

And, this morning, we announced that we are acquiring MySQL.

Jonathan provides more insight into why we are so excited about this acquisition here. Reflective of this excitement is the speed and ease with which we arrived at today's announcement. For those of you who do the M&A thing for a living, this one has gone amazingly well. It seemed as if every due diligence meeting ended with an excited discussion of the potential resulting from this combination as well as opportunities we hadn't previously known existed. This positive theme also came through in the negotiations. It also helped that each company was represented by experienced counsel who understand our respective businesses and not just the technical ins and outs of reps and warranties. So to Marty and Richard – thanks.

Our appreciation (and empathy) as well to MySQL's GC, Clint Smith, and his team. Earlier in my career, I had the experience of having my company acquired by a much larger public company. Trying to respond to the diligence requests, negotiate the definitive agreement, and support normal business operations with limited resources and in an environment of great uncertainty... well, it was a challenge. So again to you and the rest of the MySQL team – “thanks”. We are really looking forward to having you join us.

And, finally, a big thank you to all of the Sun team who worked the late nights, weekends and holidays to get us to this point. I am constantly in awe of what you are able to accomplish.

Monday Nov 26, 2007

Contributor Agreement

Earlier this year, I read a post to one of Jonathan's blogs in which the author complained vigorously about the complexity of Sun's Contributor Agreement. I responded not with an email or a blog, but rather by pounding my head repeatedly and forcefully against my desk.

For those of you who aren't familiar with this area, contributor agreements are used by most open source companies and communities to set forth the terms under which contributions can be made to an open source project. Sun's Contributor Agreement, for example, is the contractual vehicle for contributions to Sun open source projects like OpenSolaris, OpenJDK and Glassfish.

Now the reason I was banging my head was because if there is one agreement that should be a model of simplicity and clarity, it should be our Contributor Agreement. After all, we are asking developers around the world (most without formal legal training) to contribute their time, energy and intellect to open source projects like those mentioned above. The least we can do in exchange is to provide contracts that clearly describe the terms of our relationship. In the hope of forestalling a nasty headache, I took a look at our Contributor Agreement and immediately I agreed with the author of the post. The agreement was wordy and needlessly complicated. So, I asked one of our team to revise it.

Now, a few months later, we've released the redrafted Sun Contributor Agreement. The process took longer than I had hoped, but much of the time was spent soliciting feedback from the open source community about our proposed changes. And, in the end, the revised agreement is substantially improved from its predecessor. If you're interested, you can find it here.

My only regret is that the person who originally posted the comment to Jonathan's blog did so anonymously. I would have liked to have sent him or her a note expressing what I'll now say here: “Thank you for bringing this to our attention. We'll do better in the future.”

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