Update on the Sun/NetApp ZFS patent litigation
I received this update from Sun Microsystems on Tuesday on the ongoing ZFS patent litigation with NetApp. While colored by its source, the news seems positive for Sun (and, given the importance of ZFS, for the open-source development community). Sun has succeeded in getting the venue changed to California and it appears that its public request for examples of prior art have yielded fruit.
What follows was sent to me by Sun:
As of Friday, December 14, Sun has filed reexamination requests for three Network Appliance patents as part of its response to a lawsuit initially filed by Network Appliance against Sun on September 5, 2007. This follows the agreement last month with Network Appliance to transfer Network Appliance's lawsuit from Texas and litigate it along with the case Sun filed in California. The motion to transfer was filed on November 21 and the cases are now assigned to a mutually agreed upon judge. With each company being headquartered in northern California and the majority of inventors and innovation in dispute originating in California, it makes sense for this case to be litigated in this jurisdiction. We are pleased that Network Appliance agreed to Sun's request and retracted its imprudent choice of venue for this litigation.
Reexams have been filed on the NetApp WAFL patents that purportedly cover concepts such as copy on write, snapshot and writable snapshot. There is a significant amount of prior art describing this technology that was not in front of the US patent office when it first examined these patents. In just one example, the early innovation by Mendel Rosenblum and John Ousterhout on Log Structured File Systems, applauded in a NetApp blog as being inspirational to the founders, was not considered by the patent office in the examination of the NetApp patents.
Sun is committed to protecting innovation and the open source community against this attack. The reexamination of three Network Appliance patents seeks to ensure the open source community continues to have access to technology that Network Appliance did not invent. Sun is also in the process of identifying other Network Appliance patents to be reexamined. We continue to receive support from the open source community in terms of prior art and appreciate the community response to protect innovation. We would like to thank those who have sent in relevant art that has been used in connection with the reexamination requests.
Sun's actions are in response to the suit Network Appliance brought against the company to forestall competition from the free ZFS technology. Sun's earlier filings include patent counterclaims against the entirety of Network Appliance's product line, including the entire NetApp Enterprise Fabric Attached Storage (FAS) products, V-series products using Data ONTAP software, and NearStore products, seeking both injunction and monetary damages.
Sun is confident in our patents and claims against Network Appliance, and pleased with the direction of our case. To view more information, including the filings, visit Sun's Open Source Community Support page.
Things seem to be looking up for Sun. I'm sure, however, NetApp would put a different slant on the news.
Matt Asay brings a decade of in-the-trenches open-source business and legal experience to The Open Road, with an emphasis on emerging open-source business strategies and opportunities. Matt is vice president of business development at Alfresco, a company that develops open-source software for content management. He is a member of the CNET Blog Network and is not an employee of CNET. Disclosure. You can follow Matt on Twitter @mjasay. 
