While NetApp’s lawsuit alleged that Sun’s ZFS file system – which was made open source in 2005 – infringes NetApp patents, Sun’s lawsuit is aimed against the entirety of NetApp’s product line.
Sun announced its move in the blog of its CEO Jonathan Schwartz, who said that Sun would use its defensive portfolio to file a comprehensive reciprocal suit.
As a part of this suit, we are requesting a permanent injunction to remove all of their [NetApp] filer products from the marketplace, and are examining the original NFS license – on which Network Appliance was started, Schwartz said.
Sun’s suit has now been filed in the same district of East Texas that NetApp launched it suit. Last month when NetApp launched its first suit, Sun described that territory as long favored by patent trolls. Yesterday it said that for legal reasons it had no choice but to counter-file in the same district.
The original lawsuit was accompanied by a war of words in Schwartz’ blog and the blog of NetApp founder and executive vice president Dave Hitz. Schwartz claimed to be defending the interests of the wider community on the grounds that ZFS is open source code, and NetApp argued that Sun had no right to steal technology and then give it away as open source. That blog war resumed this week.
Schwartz’ claimed in his online column that he had contacted NetApp CEO Dan Warmenhoven in an attempt to resolve the dispute, but was told that NetApp wanted to see ZFS removed from open source, and banned from use in any storage devices.
The two bloggers have already directly contradicted each other about another aspect of the dispute, concerning who approached who first with an allegation of patent infringement. But Hitz’ yesterday made a posting that was a direct response to Schwartz’ latest statements – and did not dispute any of what Schwartz had claimed was NetApp’s negotiating position.
ESG analyst Steve Duplessie said that most large IT suppliers have departments dedicated to managing patents, but that Sun has always been averse to patent litigation. This is completely out of character for Sun. They’ve always been make-love-not-war hippies, he said.
NetApp last month claimed that it too was unusual in not running such a corporate department, and had only ever launched one patent lawsuit before its action against Sun.
Duplessie defended NetApp. I have no idea if anybody is infringing anybody else’s patents, but if NetApp truly believes that Sun has stolen its technology, then it has to sue, because giving away something that is stolen would not be right, he said.
The analyst was impressed and entertained by the Sun’s ambition to see all of Netapp’s filers – almost all of its products – withdrawn from the market. That’s fantastic. It’s so outrageous it’s excellent. I’d like to make some money, so I’m going to sue people and tell them they can’t wear shoes any more.
I’ve never been able to connect the dots and understand the connection between Sun giving things away, and its business strategy, Duplessie said.
Red Hat and open source are good things but they don’t make money. I’m not against giving things away, and I don’t believe in knocking old ladies on the head while they’re crossing the street. But I don’t believe in stopping them wear shoes, or charging them for crossing the street either, he said.
Our View
The extended moralizing from both companies in this dispute is not really to their credit.
Sun has tried to steal the moral high ground by repeatedly reminding the world that ZFS is open source code. But it does not mention the fact that it controls the licenses to ZFS, and is not about to hand that control to anybody else. And unless it has completely abandoned the interests of its shareholders, Sun did not make ZFS open source without expecting some sort of commercial advantage to result.
For NetApp, Hitz argued that the patent litigation inhibits innovation, and then only weeks later supported the lawsuit his company launched against Sun. His best defense for that apparent inconsistency was that in the former case he was referring to big companies suing small companies. But if it does not matter that big companies sue each other, and does not inhibit innovation, then that implies that big companies – such as NetApp itself – do not actually innovate.
