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."

Re:Funny thing

[Anonymous Coward]

Solaris is a good OS and ZFS will be decent in years to come (still buggy).

When used in a server environment, Solaris isn't merely a "good" OS. It's an excellent OS. In terms of scalability, it doesn't have any competitors. OSes like Linux, HP-UX, and AiX still can't match it, although they usually don't fare too badly themselves.

And ZFS is very stable. Although it's a relatively new product, it has still gone through many years of strenuous testing within Sun, plus even more outside in the real world. It's known to handle terabyte-sized data sets with ease. And its data integrity mechanisms do help to ensure that data corruption is only the work of buggy userland application software, rather than ZFS or Solaris itself.

This is why we need to KEEP software patents

[cperciva]

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:Funny thing

[Anonymous Coward]

IIRC, Sun went to Netapp first about patents (or something along those lines). Then Netapp found a few of its own patents relating to stuff used ZFS and Sun's legal dept. went very quiet.

Of course, I probably read this on a blog, so don't take my word for it.

Re:This is why we need to KEEP software patents

[Nomen Publicus]

Well, WAFL is closed source and ZFS is open. So someone has to explain exactly how Sun expected to get away with "copying". An added twist to the case will come when the native client/server CIFS support is shipped with Solaris (coming soon.)

Re:old news.

[Tony Hoyle]

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:This is why we need to KEEP software patents

[itsdapead]

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 get rid of software pate

[BosstonesOwn]

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.

Re:This is why we need to KEEP software patents

[badfish99]

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.

Re:This is why we need to KEEP software patents

[Ginger Unicorn]

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:Translation for the non-lawyers

[Antique Geekmeister]

Sun and NetApp have been arguing, for years, about patent issues both ways involving STK storage technologies purchased by Sun and used by NetApp, and in turn for these ZFS issues raised by NetAPP. From my experience with both, I'm inclined to believe that Sun is the one that wants actual open source competition, and that is innocent in patent violations. The Netapp appliances are painful to dig out the details of, and are exactly the sort of closed appliance that caused Richard Stallman to first become incensed and create the GPL. As such, they well deserve suspicion that they casually violate intellectual property rules.

In fact, I can think of one former Netapp kernel developer I met in another role where he couldn't understand why we published our Linux kernel patches, and thought we could reverse engineer any new Linux kernel back to his antique codebase for any new features we wanted, rather than releasing his modifications so that they would enter the Linux kernel development world and we could stop backporting and get some work done.

Re:Translation for the non-lawyers

[chuckymonkey]

I was being a little broad and overarching for the discussion I'll admit that. I am not completely in the dark about the case, for instance. "Hitz said the cross-licensing talks were halted in April after Sun claimed that NetApp's use of WAFL infringed on Sun patents." "Hitz said that during its negotiations, Sun did not specify which NetApp products infringed on its patents. However, he noted that Sun did say that most of those patents were gained through its $4.1 billion acquisition of Storage Technology Corp. in 2005." Yes SUN should quantify what patents NetApp infringed on, however we still don't know who owns WAFL patents. So here lies the problem, because the patent system is so broken who owns the patent rights to WAFL? How do we know that someone else out there in garage 20 years ago filed a patent for the same idea? Which leads to the deeper question, should anyone have the right to patent an Idea instead of a method?

Re:This is why we need to KEEP software patents

[The_Noid]

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

[Ash Vince]

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.

Sun's claiming NetApps patents are dirty

[Anonymous Coward]

Read Sun's suit - the one filed in the court nearest both NetApp and Sun, not in some patent troll heaven 2000 miles away from both.

And if Sun's CEO is right about his implications regarding the NFS license, the entire foundation of NetApp's business is going to get washed away. Because it was Sun who did the innovating with NFS.

From my reading of the case, NetApp is fucked. Sun's claims are not likely to be false - they actually reference previous cases regarding the technology that shows up in NetApps patents where NetApp had to settle because NetApp stole the technology, and then NetApp misrepresented that in their patent applications regarding that very same technology...

To repeat: NetApp has done NOTHING innovative and they look FUCKED.

Re:This is why we need to KEEP software patents

[uncqual]

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:Translation for the non-lawyers

[BrainInAJar]

"you could still manage the performance stuff with your big box of discs, but snapshots and cloning in near realtime without using up any space would not be that easy..."

Which is precisely why NetApp is scared of ZFS. Because it lets you do snapshots & cloning in near realtime without using any space.

http://opensolaris.org/os/community/zfs/ [opensolaris.org]