A month ago, Network Appliance sued Sun Microsystems, alleging the server and software company's ZFS file system infringes seven NetApp patents. Sun on Thursday fired back with a suit that claims NetApp violates 12 of Sun's.
Sun's suit also argues that NetApp's patents are invalid and that it doesn't infringe them anyway. And it requests an injunction prohibiting the company from selling any products that infringe Sun's patents.
Patent suits are often expensive and acrimonious proceedings, and they're particularly unpleasant when fought among Silicon Valley rivals who often share mutual customers and sometimes even are business partners. The Sun-NetApp case is particularly interesting in that it's being fought in the blogosphere as well as U.S. District Court's Eastern Texas district: Sun Chief Executive Jonathan Schwartz and NetApp founder Dave Hitz have been taking potshots at each other and expressing disappointment at the rival's needlessly litigious behavior as the case proceeded.
For a reporter such as myself who's heard "no comment" in response to countless queries about legal actions, these blogs add significant flavor to otherwise dry court proceedings. But being vocal about legal actions also can backfire, as in the case of The SCO Group's CEO, Darl McBride, whose very public accusations went over poorly with judges overseeing his case.
Sun legal counsel Mike Dillon on Thursday added his take for the countersuit, painting NetApp as a company that can't deal with the shift to open-source software. "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," Dillon said.
Hitz, meanwhile, posted his own response to the suit, publishing a note he sent to NetApp employees that assures them they still have jobs and assuring customers they still can buy NetApp products.
"Even for the RIM/Blackberry case, which is the closest I can think of to a big company being shut down, it took years and years to get to that point, and was still averted in the end. I think it's safe to say the odds of Sun fulfilling their threat are near zero," Hitz said.
One thing Hitz said he finds "frustrating is the way Jonathan wraps himself in the open-source flag. We aren't against open source, and we aren't even against non-commercial use of ZFS. The number one rule of open source is that you should only give away stuff that belongs to you. That is what this suit is about, and everything else is just fluff."
A day after Sun Microsystems Chief Executive Jonathan Schwartz said his company will sue to have Network Appliances' file-server products removed from the market, NetApp's founder Dave Hitz brushed off the threat and took issue with Schwartz's open-source reasoning.
"This sounds like Sun's broad threats when they sued Azul, but in the end, Sun didn't put Azul out of business or even stop them from shipping products. I'm quite confident that two years from now--or however long it takes this suit to reach court--NetApp will be doing just fine," Hitz said in a blog posting Thursday.
In a September lawsuit, NetApp accused Sun of infringing seven patents. Specifically, NetApp believes Sun's ZFS file system infringes on patents related to NetApp's rival WAFL software. Sun has released ZFS as open-source software, and Apple is among those using it.
According to Schwartz, NetApp wants Sun to "retract (ZFS) from the free software community," but he said that's impossible. Hitz sees things differently.
"Jonathan seems to be arguing that once something has been put into open source, it is beyond the law," Hitz said. "Jonathan's claim that 'you cannot unfree what is free' sets a very dangerous precedent. It says that you can steal anything, as long as you open source it afterwards. That can't be right!...One of the most important rules of open source is that you must only give away things that belong to you."
Updated at 2:31 p.m. PDT: Sun Microsystems plans to countersue Network Appliance later this week, Chief Executive Jonathan Schwartz said Wednesday, a suit that will include a request to remove the company's products from the market.
Schwartz said on his blog that he has "no interest whatever in suing them" and therefore "reached out" to Chief Executive Dan Warmenhoven. But, he said, NetApp's demands--that Sun "retract" its ZFS file system from open-source community and restrict its use to computing and not storage devices--can't be met.
Consequently, "Later this week, we're going to use our defensive portfolio to respond to Network Appliance, filing a comprehensive reciprocal suit. As a part of this suit, we are requesting a permanent injunction to remove all of their filer products from the marketplace, and are examining the original NFS license--on which Network Appliance was started," Schwartz said.
NetApp wasn't immediately available for comment. But don't be surprised if there is some: founder Dave Hitz has been outspoken about the lawsuit on his blog.
Sun spokeswoman Dana Lengkeek said Sun has a Friday deadline to respond to NetApp's suit, which accused Sun of violating seven patents.
Since ZFS is part of Sun's open-source Solaris work, there are open-source ramifications to the case. And Schwartz is trying to use the connection to curry favor with the vocal and increasingly influential collaborative programming movement.
"We will be going after sizable monetary damages. And I am committing that Sun will donate half of those proceeds to the leading institutions promoting free software and patent reform," Schwartz said, pointing specifically to the Software Freedom Law Center and the Peer to Patent Project. "Whatever's left over will fuel a venture fund fostering innovation in the free software community."
Open-source software may be copied, modified and redistributed freely. One company interested in ZFS is Apple, which is including ZFS as an option in Leopard, the Mac OS X 10.5 update due Friday.
Apple need not worry about NetApp, Schwartz said.
"Apple is including ZFS in their upcoming Leopard OS X release. This is happening without any payment to Sun," Schwartz said. "Under the license, we've waived all rights to sue them for any of the patents or copyright associated with ZFS. We've let Apple know we will use our patent portfolio to protect them and the Mac ZFS community from NetApp--with or without a commercial relationship to Sun."
- prev
- 1
- next
