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."

Comments

This is why we need to get rid of software patents

[hairyfeet]

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.

Translation for the non-lawyers

[Forge]

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

[chuckymonkey]

I understand what you mean by that post, however this really isn't one of the cases of SUN being the bad guy. It's someone thinking up an idea, patenting it, doing nothing with it, then suing when they think that someone has infringed on their patent. It's utter foolishness and does not contribute to the betterment of technology. All people like these idiots do is make lawyers rich and keep the little guy with a great idea and no money for a patent or the time to make sure someone hasn't already patented his/her idea terrified of going anywhere with it. Cases like this can only be fought by huge corps such as SUN and that to me is a very sad state of affairs indeed. The problems with the patent and copyright system really underscore the reason why the U.S. is controlled by the megacorp, only a megacorp can defend themselves from the slavering legions. As of this very moment if I were to have some novel idea come into my head for a software system the only recourse I would have is to sell it to a huge corp because no matter how great it was or how much people loved it if someone had patented that idea and chose to sue me for it I do not have the means to fight it.

Re:Translation for the non-lawyers

[Forge]

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

[Aladrin]

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

[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:Translation for the non-lawyers

[Paul Jakma]

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 (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.

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/

In the interest of fairness

[$RANDOMLUSER]

Here's NetApps CEO's blog post about this.

Re:In the interest of fairness

[DingerX]

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.

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: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:This is why we need to KEEP software patents

[onion2k]

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

[Ed Avis]

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 (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 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 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:This is why we need to KEEP software patents

[mpe]

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

[JasterBobaMereel]

This is what is wrong with the patent system in the US - In the UK (at the moment, mostly...) you cannot patent a thing only a process, so you cannot patent your product only your method of making it, in the same way you cannot patent a drug only your method of making that drug, you cannot patent a gene only your method of creating or isolating that gene, and if we had software patents (which we thankfully don't) you would only be able to patent the process of writing software not software itself (you could patent a RAD system now, but not the software that implements that process)

In the US the patent system is broken since it allows the patenting of things not methods, this really extends copywrite rather than being a separate process?

Patent your method
Copywrite your original idea
Trademark your logo/name

Re:This is why we need to KEEP software patents

[ZorbaTHut]

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

[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

[cperciva]

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"; 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

[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.

Re:This is why we need to KEEP software patents

[robot_love]

Maybe I just didn't follow you, but I think your drug argument ignores the development/testing cost of making drugs. Imagine Drug Company A spends $500 million developing an AIDS drug and then produces it at $1 a pill and sells it at $2. They must sell 500 million pills to recoup their investment.

If Drug Company B comes along and manages to produce the pill at $1.50, but didn't have to do the research and regulatory testing, they make money from the start.

Manufacturing costs are only a small portion of the cost of producing a drug. Allowing another drug company to compete only on manufacturing gives them a tremendous advantage. Patents allow Drug Company A to recoup their investment.

Your argument conveniently ignores the fantastic risk drug companies face when they develop a new drug. If it doesn't work the way the think it will, they face bankruptcy. Why would anyone take that risk if Joe Blow is going to export production to China and sell at half your price? Clearly patents have a use in this situation.

Re:This is why we need to KEEP software patents

[Hatta]

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

Solution, if you don't have the time to validate a patent, don't issue it. I'm sure if they stopped issuing 90% of patents, there would be a lot more attention focused on this problem.

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:This is why we need to KEEP software patents

[miquels]

NetApp did something innovative with WAFL; Sun then came along, reimplemented everything, and called it ZFS

Well. Innovative? Around 2000, Daniel Phillips developed a linux filesystem called Tux2 that was based on the same ideas as WAFL, ZFS and maybe BTRFS. He knew about NetApps patents but believed there was enough prior art.

Unfortunately for filesystem innovation, it looks like he got
bullied
by netapp, so the project was abandoned.

It would be great if the WAFL patents could get invalidated, or at least their scope tightened, so that creative people can get on with innovative filesystem development once again.

Re:old news.

[rucs_hack]

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.

[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 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.

Sun Started this BTW....

[Anonymous Coward]

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

Re:Sun Started this BTW....

[GauteL]

Whether Sun or NetApp started this is a point of heavy contention. They both claim to be the victim and they both claim the other party started it.

Storagetek "started" it ...

[Pinky's Brain]

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.

Re:You always copy stuff other's have done ...

[Pinky's Brain]

No, but now you are getting into minutia of implementation. The essential concept they share is copy on write of data and snapshotting of metadata to allow you to quickly make fully recoverable checkpoints of the state. In the case of KeyKOS it's the state of the OS, in WAFL's case it's the state of the filesystem.

Re:old news.

[swillden]

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?

Delighted to see Netapp takiing it!

[HKcastaway]

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.

Patent office funding

[WhiskeyJuvenile]

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.

Re:Funny thing

[Kent Recal]

I'm not the same person but I can elaborate because we have also found bugs.
The most serious so far has been that the semantics of resilvering a zfs mirror
are well, questionable.

Imagine this scenario:
One half of the mirror dies (e.g. hardware failure).
You replace the failed device and put the mirror back online.
ZFS will do a resilver and report the mirror as "online" and
"healthy".

Sounds all good, right?
Well, actually resilvering alone doesn't make the mirror
redundant again! Pulling the plug of either side at
that stage will trigger a nice kernel oops.

You have to perform a *scrub* on the pool to get
full mirror redundancy back.

We're glad that we caught this during testing because
it doesn't seem to be documented anywhere. Even the
sun technician that handled our issue was pretty surprised.

Now one may argue that this is more a documentation bug than
anything else, nonetheless we were told that sun considers
to change the behaviour in a future patch. Not least because
the zpool status output (remember: "healthy", "online") is
strongly misleading. In fact, there doesn't seem to be a way
to determine whether a "healthy" mirror is actually redundant
(i.e. has been scrubbed, yet) or not. At least not
with the standard CLI tools...

The workaround, for now, is to scrub your mirror after
any changes - and ofcourse it doesn't hurt to do it
regularly anyways.

Most of the other issues we had have fortunately
been fixed with recent solaris-patches.

For example the dreaded SYNCHRONIZE CACHE issue that
would kill performance on storage arrays with
battery backed cache:
http://blogs.digitar.com/jjww/?itemid=44

Well, in summary, we're quite happy with ZFS so
far and it is maturing steadily. Just make sure
to test it very thoroughly, especially corner cases
and failure conditions, or you might cut yourself
on one of few the remaining rough edges...

It is definately the most interesting choice for a filesystem
nowadays. Although I'm eager to see what HAMMER will bring to
the table...

Pharmcos 2x - 3x as much on marketing as R&D

[Vainglorious Coward]

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