Sun in counter suit over server patents


26 Oct 2007

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Sun Microsystems has lodged a lawsuit against a server firm called NetApps alleging the company violated 12 of its patents. But before the court battles commence, skirmishing has already commenced between the companies’ respective top brass on the blogosphere.

This is the latest development in a saga that saw NetApps last month sue Sun Microsystems alleging the Californian computing giant’s ZFS file system infringed seven NetApps patents.

Sun’s suit argues that NetApp’s patents are invalid and it doesn’t infringe them in the first place.

Sun has also requested an injunction prohibiting NetApps from selling products containing any of its 12 patents.

While a battle royale may yet be fought in court, skirmishing has already begun in earnest on the blogosphere.

Writing in a blog on the subject of the litigation, Sun chief executive Jonathon Schwartz said that NetApps’ motive was to stop the competitive impact of ZFS on their business.

“I can understand why they’re upset — when Linux first came on the scene in Sun’s core market, there were some here who responded the same way, asking ‘who can we sue?’ But seeing the future, we didn’t file an injunction to stop competition — instead, we joined the free software community and innovated.

“One of the ways we innovated was to create a magical file system called ZFS – which enables expensive, proprietary storage to be replaced with commodity disks and general purpose servers. Customers save a tonne of money and administrators save a tonne of time. The economic impact is staggering — and understandably threatening to Net App and other proprietary companies.”

Schwartz added that NetApps’ objective is to make Sun “unfree” ZFS. He said there is a common misconception amongst proprietary software companies that free software can be made unfree. He argued that this cannot happen.

He added that the ensuing litigation was unavoidable and that Sun is requesting a permanent injunction to remove all of NetApps’ filer products from the marketplace. And he said Sun is examining the original NFS license on which Network Appliance was started.

Schwartz said that by taking the initial action against Sun, NetApp is in danger of disrupting their customers and employees across the world.

NetApp’s founder and executive vice-president Dave Hitz in his blog retorted by reminding employees that their jobs are safe and by assuring customers that they can still buy the company’s products.

“Can you ever remember a Fortune 1000 company being shut down by patents?” Hitz asked. “It just doesn’t happen! 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 that Schwartz’s charge in his blog that NetApp’s lawsuit is an attack on the principles of the open source movement was wrong.

“We have tried to be very open, detailed and specific about how Sun is infringing our intellectual property. We’ve tried to set a higher standard in how companies conduct patent litigation. It’s frustrating that Sun would just do a two-barrelled blast, threatening to shut down our company. Frustrating and silly, to be honest, because it’s just so unlikely for a patent case to shut down a major corporation

“The other thing that’s 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,” Hitz stormed.

By John Kennedy

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