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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."
Old news.
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.
ACs don't waste your time replying, your posts are never seen by me.
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.
--= Isn't it surprising how badly I spell ?
Netapp dislikes Sun so much, and yet, they use their OS 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.
I prefer the "u" in honour as it seems to be missing these days.
Here's NetApps CEO's blog post about this.
No folly is more costly than the folly of intolerant idealism. - Winston Churchill
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.
Tarsnap: Online backups for the truly paranoid
Sun have a corporate culture of not suing people. But they also countersue, and in this case, HARD.
John
I agree with you, the only real solution is to get rid of patents.
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.
This package Does Not Contain a Winner
It's unavoidable. Innovation will happen with or without software patents, there are no original ideas which won't be thought of again in 17 fucking years. Metadata snapshotting is such an idea (I'm using the term a student doing research at IBM gave it when he reinvented it, because it's a much better name than WAFL).
... and when they are it's by accident not by brilliance. Brilliance is not in short supply.
Hell, I'd argue WAFL is just the filesystem equivalent of KeyKOS. Very few thoughts are original
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
Reduce, reuse, cycle
How does that work? Did Jonathon twist Dave's arm, haul him into the courthouse, and make him file?
It seems to me that if NetApp were merely defending themselves, they would be counter-suing over ZFS in response to a Sun-initiated lawsuit over other patents.
But that's not what's happening here, is it?
Lets ignore the whole unverifiable "intermediary" Sun's CEO brought up and lets also ignore Netapp's claim that Sun contacted them 18 months before that post.
The only real proof Netapp's CEO has provided is an email which states there were demands over one and a half year before December 2006 (so 27 months before that post, can't be the same communication he is talking about unless he doesn't know what he is talking about). Which puts it well before the takeover. Question is, did Sun push for them to enter a cross licensing deal after the takeover or was the deal proposed in the email inherited too? Hard to say without knowing the context of the single email provided.
All I know for sure is who initiated a lawsuit.
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.
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.
"A method to contain or restrain a rodent or other pest using an object that has two states, one that allows free ingress into the device by a creature as defined in clause 1 which ingress causes a physical change of the device to deny egress to said creature".
Now, build a better mousetrap without falling foul of my patent!!!!
I'd argue WAFL is just the filesystem equivalent of KeyKOS's checkpoint mechanism.
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.
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
What about SpamHause (wasn't it?) that didn't do ANYTHING in the US but were still found guilty in a US court.
Or Sylkarov, working in USSR for a USSR product THAT WASN'T BEING SOLD IN THE US (deliberately, they took steps not to). Still got banged up.
The past few years, if it's illegal in the US, it doesn't matter if you aren't in the US.
And, if you are found guilty, they can take you in if you fly over or stop to change craft in the US (as per UK betting mogul currently doing bird in the US).
What can NetApp's patent do that Digital Equipment Corporation's AdvFS couldn't do in the 1990s?
Software patent thugs, a pox on all your houses!
"What can NetApp's patent do that Digital Equipment Corporation's AdvFS couldn't do in the 1990s? "
Survive.
You were mistaken. Which is odd, since memory shouldn't be a problem for you
Mr Schwartz is pissed as hell.
Religion is what happens when nature strikes and groupthink goes wrong.
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?
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.
so what's the difference?
And SpamHause didn't turn up because the court HAD NO JURUSDICTION.
We been spending most our lives living in a lawyer's paradise.
<sweat pouring down face>
captcha: atheism (SWEET!)
I prefer the "u" in honour as it seems to be missing these days.
I don't think that the problem is with software patents per se, I think the problem is the (mis-) allowed use of overly broad language and how those patents are enforced. Say I build a mouse trap - it utilizes a spring-loaded bail to dispatch the offending rodent when it hits the trigger. It works great, so I patent it. You come along and see my patented mouse trap and think "Hey, I can do that one better" (you know, build a better mousetrap...) So you proceed to build a mouse trap that uses a weight system instead of the spring system to do the dirty work and finally you patent it. In the "mechanical" (traditional) way of looking at patents, every thing's on the up and up. You and I have built and patented mouse traps that efficiently dispatch the offending rodents. The market place will decide who really has the better idea and profits will be made. But, the way it looks (to me) like software patents are applied, is that the result or outcome is what is patented, not the mechanism (i.e. code/methods) by which the result is obtained. In this case, when you build your mouse trap, I sue because I patented a device to "trap and/or kill mice and other vermin", thus since your trap is designed to accomplishes the same outcome, regardless of how that outcome is derived, you are violating my patent and I am entitled to relief.
As an historical footnote, The Wright Brothers used the same broad language and the same arguments the IP trolls are using today to defend their patents on a means of roll-control for airplanes. The continuous and contentious litigation is thought to have contributed to Wilbur Wight's untimely death at age 45.
Look Out Above!
I've thought this for a while, but wanted to have this comment to refer to before xmas of '08. I suppose while I'm at it, I should say congratulations to Obama too.
Firstly, the USPTO receives no taxpayer funding. Secondly,
(b) The Director shall charge the following fees for maintaining in force all patents based on applications filed on or after December 12, 1980:
(1) 3 years and 6 months after grant, $830.
(2) 7 years and 6 months after grant, $1,900.
(3) 11 years and 6 months after grant, $2,910.
Unless payment of the applicable maintenance fee is received in the Patent and Trademark Office on or before the date the fee is due or within a grace period of 6 months thereafter, the patent will expire as of the end of such grace period. The Director may require the payment of a surcharge as a condition of accepting within such 6-month grace period the payment of an applicable maintenance fee. No fee may be established for maintaining a design or plant patent in force.
like a japanese cowboy, or a brother on skates.
This is what they did in India for decades. Until recently patents were only available on rather specific processes for making drugs, not for the drugs themselves. Results? Lots of cheap knockoff drugs, not a lot of innovative new drugs. India's pharma industry has been a supplier for low income people around the world (which is good) but almost entirely for knock-offs of drugs developed elsewhere. (mostly the US and Europe) Few new drugs have been developed in India over the last 50 years under their process focused patent laws. From a purely economic standpoint there is far less incentive to commit the immense financial resources needed to research and develop new drugs under process focused patent laws because there is usually more than one way to produce a given drug.
There is no free lunch. Eliminate product patents in favor of process patents and many drugs will be cheaper but you will slow drug research and fewer new drugs will come to market. I am not here to tell anyone what the correct course of action might be. There are strong ethical arguments on both sides of the problem. I am simply pointing out that there are consequences, both good and bad, to changing the patent regulations.
When next the owner flies past/through the US, they can be jailed. Like the ex-owner of a UK gambling site.
Public research does not solve the economic incentives problem. There are finite financial resources and an effectively infinite number of possible diseases to research. How to prioritize where the money goes and who takes the legal risk? Not an easy question to answer. We already have world class public research in the US via academic institutions and the NIH among others. But there is a HUGE gap between public research and drug development and it's not an easy gap to cross.
It is extremely difficult to have effective publicly funded drug development. Drug trials are very expensive (sometimes into the billions of dollars) and most fail. Would you rather pay for drugs via tax dollars or via higher drug prices? You're going to pay either way, and the drug trials don't get cheaper just because the government picks up the tab. Just the opposite if anything. Not to mention that public institutions tend to be notoriously inefficient with money that isn't theirs. Betting that the government can allocate capital efficiently is mostly what caused the Soviet Union to collapse. I've yet to see a government that is better at it than private companies.
Even if a drug gets to market there are still significant financial risks, especially litigation. Just because someone does the research does not automatically make it profitable to produce a drug based on that research. Vaccines are a good example. There is a lot of legal risk (no vaccine is 100% safe) and little/no recurring revenues. Even if someone else picks up the tab for the very high R&D costs, they still are generally only borderline profitable. Even countries with explicitly socialist health care systems haven't solved this problem.
Please don't get me wrong, some public research is vital. Some drugs would never come to market without it. But it's not an easy problem. Just waiving our hands and saying "public research" will not solve the problems of the economics of drug development. If it were that easy someone, somewhere would already be doing it.
GP is wrong - most analyses show that pharmcos spend between two and three times as much on marketing as they do on R&D. The raw data for these studies is the pharmcos' SEC filings. There's plenty of analysis of this
My next sig will be ready soon, but subscribers can beat the rush
..... to keep the USPTO funded and thus able to pay expert patent examiners.
And suing limits should be introduced.
So, overall, the same amount of money goes into the system as today, the same people get paid as today, but cleanly.
Or maybe I underestimate lawyers' capacities to drag a suit over years.....
Or introduce a "patent tax"!
We should send them both to their bedrooms. Without any supper.
Really, we need Sun and NetApp to be friends. I work for a company that has a multi-hundred-million dollar Sun and NetApp installation, and I don't need this animosity between our two most important vendors.
Its. Just. A. Filesystem. GTF over it, guys. Really.
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 make me wonder which of these guys is Han and which is Greedo.
Public research does not solve the economic incentives problem. There are finite financial resources and an effectively infinite number of possible diseases to research
Government can dole out money as it sees fit to encourage research and solutions.
But there is a HUGE gap between public research and drug development and it's not an easy gap to cross.
Why? Could part of the reason why the private sector succeeds more here is simply because they have the lead and there is no impetus to change?
It is extremely difficult to have effective publicly funded drug development. Drug trials are very expensive (sometimes into the billions of dollars) and most fail.
Thats pennies to the government at our current spending levels.
Would you rather pay for drugs via tax dollars or via higher drug prices?
Tax dollars.
You're going to pay either way
With the corporate model, you have to pay for marketing and other corporate overhead specific to corporations. With the publicly-funded model, the government can streamline the process, avoid the consumerist mess of advertising, and etc.
and the drug trials don't get cheaper just because the government picks up the tab
Maybe so, maybe not, but corporate overhead is enough nonetheless to justify it.
Not to mention that public institutions tend to be notoriously inefficient with money that isn't theirs.
A victim of democratic politics, not the concept of socialism.
Betting that the government can allocate capital [wikipedia.org] efficiently is mostly what caused the Soviet Union to collapse.
And foreign meddling.
I've yet to see a government that is better at it than private companies
Nazi Germany was quite successful at this. (OMG BOO HISS!!!)
Even if a drug gets to market there are still significant financial risks [google.com], especially litigation
All the more reason to let the government handle it!
Just because someone does the research does not automatically make it profitable to produce a drug based on that research.
The government need not care about profit, only the benefit to its people.
little/no recurring revenues.
Which is why the government often subsidizes it as a public health issue.
Even countries with explicitly socialist health care systems haven't solved this problem.
Socialized medicine isn't designed to be profitable, dummy.
But it's not an easy problem. Just waiving our hands and saying "public research" will not solve the problems of the economics of drug development. If it were that easy someone, somewhere would already be doing it.
Of course. If we have learned anything from life, it is that idependent groups of people will tend to want to find independent solutions to problems. The job of the government should be to encourage people to naturally group themselves and reward those who produce the best results.
The government's role is to encourage them with grants, regulate the safety and process, and ensure the product enters the healthcare system without corporate corruption, overhead, and lobbying.
Nice troll there Captain Flamebait. Godwin's law is hereby invoked.
Remember, without patents, the little guys get really screwed. If I invents some software in my 2 person company, and a big company like MS wants it, they have to buy the patent from me. Without patents, they can just write the same software themselve (which is easy for big companies).
While lawyers screw the little guys, the patent system protects everyone. The problem is with the lawyers.
Public research does not solve the economic incentives problem.
You are right, publicly financed research isn't as good economically as privately financed research. It is, in fact, far better because billions of dollars wont be wasted on advertising and making sure each member on each board of directors gets their $50 million annual bonus.
We already have world class public research in the US via academic institutions and the NIH among others.
Many drugs that are patented and sold at high prices were in fact developed with public financing, because the Bayh-Dole Act allows universities to patent their discoveries, even if those discoveries were paid for with taxpayer money. That is one thing that would have to be changed, along with mandating open access to the results of taxpayer funded research.
Drug trials are very expensive (sometimes into the billions of dollars) and most fail. Would you rather pay for drugs via tax dollars or via higher drug prices? You're going to pay either way, and the drug trials don't get cheaper just because the government picks up the tab.
And just where, exactly, do you think drug companies come up with the money for drug trials?
Betting that the government can allocate capital efficiently is mostly what caused the Soviet Union to collapse.
No, that was because the people wouldn't put up with communism any more after perestroika and glasnost.
Even if a drug gets to market there are still significant financial risks, especially litigation.
Litigation, smitigation: meet soverign immunity.
Nice troll there Captain Flamebait. Godwin's law is hereby invoked.
And you ignore the other 14 points he made. Convenient, that.
If you are seriously arguing that governments are efficient at allocating capital then we'll just have to disagree. Publicly funded research has an extremely important place in the mix but eliminating private drug R&D is hardly the solution to all our woes. We have a mixed public/private model right now and for all its problems, it works. Yes, for profit companies make a lot of money which is obviously inefficient from the perspective of helping patients. Governments arguably waste even more money. Pick your poison. I actually agree with you in principle about publicly funded research remaining public domain. Where your arguments are falling down is that you haven't explained why any of your proposals would result in more/better drugs or medical devices actually coming to market. To my mind you are merely trading one set of problematic incentives for another without clearly better results.
If a (carefully regulated) company makes a lot of money while helping lots of people with injury and disease I'm ok with that. Is it perfect? Of course not. There are lots of problems, not the least of which is the conflict of interest a profit motive can provide. But that does not automatically mean governments will do a better job because governments have their own incentive problems. I'm open to being convinced but I simply do not see a logical argument why a purely taxpayer funded model of drug development is clearly better than the mixed public/private model we have today. I'll ignore the fact that a pure public model is politically impossible so we are discussing purely hypothetical scenarios anyway.
I'm not going to waste my time arguing with an Anonymous Coward who invokes Nazi Germany as a good example of efficient government. That is a troll (not to mention an empty argument) and you should know that.
If you are seriously arguing that governments are efficient at allocating capital then we'll just have to disagree.
Then you disagree with reality. Governments do tend to be quite poor when running production on farm or factory. They do tend to do quite well when running services or promoting research. And even if Big Pharma is better on the research side, they still waste *billions* on advertising, lobbying, and making their top executives filthy rich. Why do you think that is a better allotment of capital than the government giving that money to hospitals and universities for more research?
Publicly funded research has an extremely important place in the mix but eliminating private drug R&D is hardly the solution to all our woes.
Who said anything about eliminating private R&D?
Governments arguably waste even more money.
I've always been curious by this notion that a group of individuals working in government == waste but the same group working in private industry == efficiency.
But that does not automatically mean governments will do a better job because governments have their own incentive problems.
Well, the government's priority is helping the people. A businesses 1st, 2nd, and 3rd priorities are making money.
I'm open to being convinced but I simply do not see a logical argument why a purely taxpayer funded model of drug development is clearly better than the mixed public/private model we have today.
Okay, let's say the government develops, tests and manufacturers a drug for treating Parkinson's for $900 million dollars. Then it is sold at cost through a universal health care plan. Now lets say Super Duper Pharma is able to do the same development, testing and manufacturing for a mere $200 million. But then they turn around and sell the drug for $80 million a year for the 17 year length of the patent, and use the profits to buy advertising, another congressman, and a third Bentley for the CFO. Which approach makes more sense? And this is giving Pharma a big head start.