Sun To Seek Injunction, Damages Against NetApp

Zeddicus_Z writes to note that Sun CEO Jonathan Schwartz has outlined Sun's response to Network Appliance's recent patent infringement lawsuit over ZFS: "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. In addition... 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... [Regarding NetApp's demands in order to drop its existing case against Sun:] ...[to] unfree ZFS, to retract it from the free software community, and to limit ZFS's allowable field of use to computers — and to forbid its use in storage devices."

This is why we need to get rid of software patents

Try to do something new,or innovative, and out come the lawsuits. Only the megacorps like Sun can really compete in the minefield that is software anymore. If we can get rid of the foolish software patents, and get copyright back into a reasonable time frame, maybe the US can get back to being an innovator, instead of merely a lawyers paradise.

This is why we need to KEEP software patents

I disagree completely: This is why we need to keep software patents. NetApp did something innovative with WAFL; Sun then came along, reimplemented everything, and called it ZFS.

Remember, "innovation" means "doing something new" -- not "copying what someone else has done". There are certainly implementational issues with the patent system as it currently exists, but in principle the patent system is all about protecting people who do something new from corporations (like Sun or Microsoft) who just reimplement without adding anything new.

Re:This is why we need to KEEP software patents

That's how patents are supposed to work: in return for the temporary protection of a patent, you have to reveal exactly how your invention works in the patent application, so that everyone can copy it once the patent has run out.

Maybe patent applications should be examined by qualified people to see if they can be implimented using only the information supplied in the application together with that already in the public domain.

Re:This is why we need to KEEP software patents

Maybe patent applications should be examined by qualified people to see if they can be implimented using only the information supplied in the application together with that already in the public domain.

There's no maybe about this. As part of a patent application, "the specification must include a written description of the invention and of the manner and process of making and using it, and is required to be in such full, clear, concise, and exact terms as to enable any person skilled in the technological area to which the invention pertains, or with which it is most nearly connected, to make and use the same [uspto.gov]"; and patent examiners are responsible for determining if a patent application meets this requirement.

Most of the problems with the patent system right now can be traced to the fact that patent examiners neither have enough time nor the qualifications necessary to make such determinations -- the days when the likes of Einstein worked for the Patent Office are long past. However, this is a reason to recruit more and better patent examiners (and in particular more in the area of computing), not to throw out the entire system.

Re:This is why we need to KEEP software patents

Most of the problems with the patent system right now can be traced to the fact that patent examiners neither have enough time nor the qualifications necessary to make such determinations -- the days when the likes of Einstein worked for the Patent Office are long past. However, this is a reason to recruit more and better patent examiners (and in particular more in the area of computing), not to throw out the entire system.

Now first let me make clear that I agree with the above statement and think that you have correctly identified the root of the problem.

The only problem I have is with your suggestion as to how to fix it. The patent office would need to be vastly increased in size in order to cope with having people with a higher degree of specialisation. This would also result in the patent office having to hire more expensive staff (better qualifications and specialised expertise is not cheap).

This would in turn put up the tax bill for the average american, and we know how much they love politicians suggesting higher taxes. The other issue is that this would negatively impact on patent lawyers earnings. The large patent law firms would therefore lobby very hard against such a move.

Re:This is why we need to KEEP software patents

This would in turn put up the tax bill for the average american

Or, raise patent fees - perhaps including a "time and materials" component which would vary depending on the skills and effort required by the patent office. Those patents that required an uberexaminer with doctorates in three seemingly unrelated fields and 20 years of commercial experience would be expensive - but that seems okay. It seems likely that some of the most novel patents (slapping head saying "dang, that's really clever and useful, why didn't I think of that?") actually would require the least effort/cost to grant -- and these are the sort of patents that seem to be the best for society as they reflect true innovation and insight.

Perhaps part (1/2?) of the fees above some limit could be paid on an installment basis over the life of the patent (possibly with interest) - and the patent holder could decide to stop making the payments and thereby irrevocably release the patent into the Public Domain. On the positive side, this would help the "little guy" a bit as some of the expenses could be deferred or, even never incurred. It would also open up patents more quickly to the Public Domain if the inventor ('s company) hadn't figured out how to commercially exploit the patent. Also, on the positive side it would tend to reduce, over time, the number of active patents and thereby reduce the search effort (for both the applicant and the patent office) and also remove some of the mines from the minefield that technology companies walk every day. On the negative side, some of the expenses of patent applications would eventually be borne by the taxpayer or by amortizing the ultimately unrecovered costs across other patent applications.

Re:This is why we need to KEEP software patents

What NetApp did was to patent a method of mapping data in a file system. What they should have been made to do by the USPTO was patent their implementation of a method of mapping data in a file system. It's a subtle but important difference.

To draw an analogy to something a little more obvious we should look to the drug industry. Many people believe that patenting drugs shouldn't be allowed, what should be allowed are patents on the method of making the drug. If someone can think of a way to get the same end result using a different process they should be allowed to do just that. Having a system that allows companies to hold patents on what amount of sequences of data is silly.

The same should go for software. It's fine to patent a specific implementation of some code, but it's not fine for that patent to cover every conceivable way of achieving the same end result.

Re:This is why we need to KEEP software patents

Many people believe that patenting drugs shouldn't be allowed, what should be allowed are patents on the method of making the drug.

In the case of the drugs industry (frequently raised as a pro-patent argument) - where you need mandatory regulation anyway to ensure drugs are safe and effective, surely it would be quite straightforward to grant a fixed-term exclusive license as part of the (expensive) approval process? No need to get bogged down with lawyers trying to decide who "owns" the underlying knowledge - you pay to get something licensed in a particular country, you get a N year monopoly.

Re:This is why we need to KEEP software patents

The same should go for software. It's fine to patent a specific implementation of some code, but it's not fine for that patent to cover every conceivable way of achieving the same end result.

Surely what you're describing is copyright, not patenting. Being a granted a monopoly on a specific implementation is copyright. Regarding what you said about the drug industry - if your scheme was put in place, what would be the incentive to develop the drugs in the first place? If you come up with a cure for AIDS and start marketing it, then a month later someone comes up with a way to churn your pills out faster and cheaper, and there no possible way for you to do it more efficiently than them, they get to eat your lunch with impugnity, since you would be forbidden from emulating their process, and they arent forbidden from raping your hard earned R&D assets.

Re:This is why we need to KEEP software patents

The problem is that "copyright" and the logical extension of "patenting" physical objects are the same thing.

You don't copyright a stove, because people can't just copy it. You patent it, and now people can't build an identical stove, even if they could build something very stovelike. But with software, you copyright the software, and now people can't copy it. Patenting would, in theory, fulfill the exact same purpose - "you can't build the identical software" - and that's software patents are kind of bizarre and shouldn't even exist.

Instead, though, patents are being treated as "one step up from copyright" - you can't build an identical stove, and you "can't build software that does the same thing". Which isn't the equivalent of patents at all. It's more the equivalent of a concept monopoly. If software patents were imported right back into the physical world, you'd have people able to put patent on "cars", or "stoves", as an entire class of thing.

I don't think software patents need to be "fixed". I don't think they need to be "abolished". I think what's necessary is realization that the entire concept of "software patent" doesn't even make sense, and that there really is no parallel with the physical world here.

Re:This is why we need to KEEP software patents

You're correct.
A patent is on an implementation. Abstract ideas are not patentable. That's why software patents make no sense, as software is already protected by copyright.
At least in Europe it still works that way :)

And with regards to drugs, if some else is so much smarter then you that they can produce the same pills a lot cheaper then maybe you're in the wrong business. Do you want to withhold the sick population from cheaper drugs just because the current patent holder is too dumb to produce it cheaper? I personally do not. Patents take away the need to innovate and thus they are bad.

Re:This is why we need to KEEP software patents

Why do you want to design a system to 'protect people who do something new'? Surely the system should be run to promote progress in science and the useful arts, as specified in the US Constitution?

Maybe it does promote progress to have patents on software, but it's not a foregone conclusion; study some of the arguments [mit.edu] (there may also be a good site arguing in favour of swpats, but I don't know of one) and decide what works best in the public interest, rather than just assuming that any measure in favour of 'inventors' is going to help the public.

Re:This is why we need to get rid of software pate

As a former Sun employee and still open solaris dev. I can say your 100 % right. They never like lawsuits. They understand all it does is make lawyers rich, and barely ever gets to the root of the issue, especially when a non technical judge or jury makes a decision based on how much a lawyer makes them think is right.

Translation for the non-lawyers

Your honour this little fly-by-night company has dared to file a lawsuite against the glory that is Sun.

As a minimum response we want them bitch-slapped raked over the coals and then chopped up into little pieces and dumped at sea.

And just in case you don't think Sun is grand enough to make this happen, we are soliciting help from those people who want to reform the freakishly complicated patent system.

Thank you.

Re:Translation for the non-lawyers

Actually I was just trying to be funny.

The reality is that the mega patent holders. IBM Sun and even Microsoft tend not to run out and file patent lawsuits to stop innovation but rather as a defensive measure to protect their business from litigious none innovative parasites.

NetApp isn't the worst of the bunch since they still have viable products on the market. Unfortunately they are so panicked over the possibility that we may use PC Servers with huge piles of massive SATA drives at a total cost way below the stuff they are selling.

If only they were able to come up with new products when someone else innovates enough to make what they are selling today a commodity.

So no offence to Sun but hey we should be able to make fun of our friends too.

Re:Translation for the non-lawyers

Doing nothing with it? Their entire business depends on this lawsuit. If they lose this, EVERY product they sell will die. This is an excellent example of a patent doing what it is -supposed- to do: Protect the innovation and allow the innovator to profit from it.

Sun used the product from the patent and created a Free version without permission. That makes them a great 'Robin Hood', but it also makes them the 'bad guy' in the eyes of the law.

Re:Translation for the non-lawyers

Sun used the product from the patent and created a Free version without permission. That makes them a great 'Robin Hood', but it also makes them the 'bad guy' in the eyes of the law.

You're stating as a matter of fact that Sun "used the product from the patent". This is stretching the truth somewhat. The actual facts of the matter are that NetApp claims Sun have violated their patent (WAFL, etc), and filed suit requesting relief. Sun however disagree and believe they do not violate NetApps' patents - indeed Sun claim, in their counter-suits, that NetApp are violating Suns' patents. However, no-one is violating anyone's patents until either both parties agree they are, or a judge says so.

You can read Suns' response to NetApps' complaint [sun.com] (which #include's most, if not all, of NetApps' complaint).

NB: I am a Sun employee. I have tried to keep the above post be 100% fact-based and opinion-free, but I am obviously biased, I also may be wrong and finally IANAL. Lector emptor.

Funny thing

Netapp dislikes Sun so much, and yet, they use their OS [netcraft.com] While I run and push Linux, Solaris is a good OS and ZFS will be decent in years to come (still buggy). I find it interesting that Netapp decided to sue over this. These system do not really compete against each other.

In the interest of fairness

Here [netapp.com]'s NetApps CEO's blog post about this.

Re:In the interest of fairness

Very cute. But there's a huge problem here. Let's assume everything that NetApp claims is true: That WAFL contains a bunch of unique ideas that are patent-worthy and protected by patent, and that ZFS infringes on them in a non-trivial manner.

Okay, so what are you going to do? Sue Sun?

If so, you'd better hope that there's nothing in Sun's patent portfolio that you're infringing upon. The way software patents have gotten these days, it's a pretty fair bet that NetApp runs afoul of at least a few of Sun's 14,000 patents.

To reassure folks internally, Dave appeals to ignorance:

"Can you ever remember a Fortune 1000 company being shut down by patents?

There's always a first time. And maybe that's what it will take to reform the system. While Sun can wave the F/OSS flag as they battle NetApp, they will end up proving a few scary points about the current state of the patent system:

1) If a company tries to use software patents the way they were intended, it will only be successful against companies smaller than themselves. The big boys will insist on a portfolio exchange; if that fails, one party will end up looking like SCO.
2) The only way to get money out of the "big infringers" is to have a company with zero liability of patent infringement, such as one with a litigation-based business model.
3) Software patents are a barrier to entry for small companies, and a perpetual liability.

Sun Started this BTW....

From the Netapp CEO's blog:

How did we get here?

"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."
http://blogs.netapp.com/dave/2007/09/netapp-sues-sun.html [netapp.com]

Confused

After reading the summary, I am not quite clear on who sued whom, who infringed whose patent and who the, ah, "good guys" are here.

I know, RTFA. But the summary could be a bit clearer.

short summary for those interested

Here's the short summary: It's a biggest dick war between two idiotic ego-driven CEOs, that's gotten out of hand.

If you dig far enough, NetApp asked Sun about disclosure on patents. Sun replied, NetApp said that's not good enough, Sun said, bite us, NetApp said we'll sue, Sun said we'll give you the info you want if you agree not to sue and pay us $36mil (or thereabouts), NetApp sued, Sun countersued, and so forth.

I use NetApp and Sun gear daily, and have done for years (decades?) now. Both are pretty much tops in their fields, both have some quirks, and both stand on their own without competing badly with the other (honestly, when was the last time Sun had a non-laughable disk storage system?). However, I'm sick of that pony-tailed bean-counting pinhead Schwartz, I'm sick of Dave Hitz "master of lying and crocodile tears," and I'm sick of fuckheads like this destroying good companies for the sake of their pathetic egos. Let's toss 'em in a room with their lawyers and weld the doors shut. The industry would be better off.

Prior art:DEC AdvFS

What can NetApp's patent do that Digital Equipment Corporation's AdvFS [wikipedia.org] couldn't do in the 1990s?

Software patent thugs, a pox on all your houses!

In other words

Mr Schwartz is pissed as hell.

Why is Sun blogging about this?

One of the first things your lawyers tell you when you are involved in litigation is to shut up about it. Why is Sun blogging about a case they are actively involved in?

Delighted to see Netapp takiing it!

Netapp are a company that do their best to make sure their products are not sold in the 2nd hand market and once a product EOL there is little chance to use it.

I have a few Netapps here and can't use them because Netapp will not release the activation license key.

An IT future without Netapp's built in obsolescence is a better future.
I hope Sun has a field day with them.

Have NetApp changed their OS? And who shot first?

The port is done to FreeBSD, the OS on which Net App's filers are built.

Last I checked NetApp's filers contained code from NetBSD, not FreeBSD. And they're definitely not just an application running on top of Net, Free, or any other BSD.

Unless NetApp's made some big changes somewhere, this sure sounds like Jonathan's own research is a bit shakey.

Bill Todd's comment, starting Methinks you'd have a somewhat stronger leg to stand on if the legal posturing hadn't begun with *your* demanding $36 million from NetApp due to alleged infringement of *your* patents. While their response was also heavy-handed, it's difficult under those circumstances to call it unjustified. and the linked comment a couple messages further down on NetApp's blog [netapp.com] make me wonder which of these guys is Han and which is Greedo.

Re:old news.

Old news.

Maybe, but still worth discussing. What are the implications for everyone?

Re:old news.

For me, quite a lot. I'm wanting to start up a software house some time in the next year. These patent wars frankly wory me. I don't know if I'd be that keen on entering the US market, since some shark will no doubt try to take a bite if my product is seen to be making money. Better to work in Europe and the far east methinks.

Yeah, software piracy is a tad rife there, but I'd rather be strategising against pirates (services instead of software payment etc), than have my company gutted because of some shitbar patent suit in texas.

Re:old news.

Don't have any development in the US, so if someone goes after you it only affects distribution not development, don't ever incorporate in the US (makes it harder for them to go after you), and make sure you don't look too hard at existing patents (it's triple damages if you knowingly infringe a patent.. since its damned near impossible not to infringe a software patent with any sizable code it's far better if you're ignorant of which ones.. and yes a lawyer was the first one who advised us about that).

We have a sales team in the US but there's no legal company there, to protect ourselves.

Re:old news.

Wow, you're doing business is the US with no legal affiliation with the local or federal govt?

You must have some fucking terrible lawyers.

Either that or your reading comprehension sucks.

Which is more likely?