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A Sun Update on the NetApp Litigation
Thursday, June 26 2008 @ 04:43 PM EDT

Recently, I did an update on the Sun/NetApp litigation, but now there is something better, an update by Mike Dillon, Sun's General Counsel. What a great name for a lawyer it would be if his parents had named him Matt. He says thank you to all who helped with prior art:
After NetApp sued Sun, we responded with six reexamination requests on the patents asserted by NetApp. Reexamination is a procedure in which a party submits documents (prior art) relating to a patent to the US Patent Office (PTO) and asks that it reconsider whether that patent should have ever been issued. If the PTO agrees and determines there is a “substantial new question of patentability" (SNQP) it will grant the request and reopen the patent examination process on that patent. Included in our requests was a significant amount of highly relevant prior art that was not considered by the PTO when it first granted the NetApp patents. (By the way, to those of you who submitted prior art - "thank you!”)

Over the last two months, the PTO has granted the first five of our reexamination requests, finding in all the cases that multiple “SNQP” exist for each patent (one request filed in June is still pending).

That would include you guys, prominently so, and I wanted you to know your efforts were effective and appreciated. But there's another part I wanted to highlight. It has to do with ethics.

There was just an attempt to see if there could be resolution to the litigation, in a conference with the judge in the Sun/NetApp case, an attempt that failed, and here's Dillon's take on why it failed and what the case is all about:

It wasn't for lack of effort. Instead, it's because our two companies have very divergent views on the future of computing. It has become increasingly clear, that although NetApp originally claimed this case to be about Sun's alleged patent infringement (an assertion which we are confident we will prove was unfounded), the case is about something else entirely. It's really about the clash between two different business models, one proprietary, the other open. NetApp admits as much in a declaration of Dave Hitz (a document recently unsealed by the court). It is this difference that is the source of the litigation. And, as more of the world moves away from proprietary models, I expect to see other litigations arise between companies in this area.

To be clear, Sun = FOSS. We have transformed our company and aligned it around the belief that giving away our technology and investing in related communities will create greater adoption of our intellectual property and ultimately redound to the benefit of our shareholders, customers and the open source community. When it comes to Sun's commitment to open source - "the horse is out of the barn". Not only that, it's also had foals. And, their names are Sun Open Storage, OpenSolaris, MySQL, Glassfish, OpenJDK, OpenSparc and...

In the context of the SCO saga, and Sun's apparent role in it, I'd just like to say this: misusing the court system as a competitive weapon is not acceptable to the FOSS community. This time Sun is on the receiving end. Proprietary companies do this all the time, I gather. But in the Free Software/Open Source space, it's not acceptable. And all companies that want to take advantage of the open model need to seriously think about what makes it all work, and that's the same as telling them they need to understand what community means. It is a cooperative space, where cut-throat tactics don't belong. Courts are not for gaming.

Brendan Scott of Open Source Law was interviewed recently and he made this point:

Open source is about community. You need to understand the community to operate effectively in it and this means changing your own behaviour. For example, if you start a new job and there is a cake morning on Monday, then you are going to have to find a cake shop or hone your baking skills if you want to be part of the team. Popping out for group coffee on a Friday like you did at your last employer won't work. That is why it's important to connect with people who are already members of the community and know their way around it - people from the Monday set, not the Friday set.

In other words, you have to fit in. Releasing code is not all there is to it. Ethics, fairness, honesty -- it's the FOSS culture, and it's the value add. Any company that tries to play by the old rules undercuts that advantage. It's the one thing Microsoft can't embrace, extend, extinguish. They can't even offer Brand X, because we'd all laugh. It would, in any case, take decades to live down their rep. So players in this space need to morph that part of their way of doing business also. If you don't believe me, look at Oracle's play to try to undercut Red Hat. Blech. And Red Hat is doing fine, thanks. It always will, unless it starts importing proprietary tactics into the mix. The community is made up of brainiacs, you know. They know what is happening, and there are no secrets, long-term. So I would hope that all companies wanting to make use of openness as a model will scrape the proprietary crud off of them before they enter. We want to keep things clean in here.


A Sun Update on the NetApp Litigation | 72 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Is PJ asleep?
Authored by: Anonymous on Thursday, June 26 2008 @ 04:51 PM EDT
The May MOR came out yesterday.
The hearing transcripts came out earlier today.

[ Reply to This | # ]

Off tropic here please
Authored by: Pogue Mahone on Thursday, June 26 2008 @ 04:58 PM EDT
Choose subject carefully, and a nice clicky if you can manage, thanks ...

I'm not afraid of receiving e-mail from strangers:

delta alpha victor echo at foxtrot echo november dash november echo tango dot
delta echo

[ Reply to This | # ]

Corrections thread
Authored by: Aladdin Sane on Thursday, June 26 2008 @ 04:59 PM EDT
Please place corrections to the article here.


Form follows function.

[ Reply to This | # ]

Eyeballs for ODF - the Groklaw discussion thread
Authored by: bbaston on Thursday, June 26 2008 @ 05:00 PM EDT
Share "Eyeballs for ODF" feedback here. PJ says:
"Stay polite at all times, of course, if you say anything, and you needn't say anything, but do follow along and please keep us posted on anything you see that sounds peculiar." and
"Do whatever is possible to avoid engagement with trolls, here and there."

OASIS discussion list for ODF Implementation, Interoperability and Conformance
Links: original formation, discussion's archive, and draft charter.
Registered for OIIC discussion? Monitor #oiic with xchat, etc [, /join #oiic]. #oiic traffic is periodically log-dumped to an OIIC discussion thread - so remember to "stay polite".

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

News Picks
Authored by: bbaston on Thursday, June 26 2008 @ 05:04 PM EDT
Tell us which one you're commenting on, please.

imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Who are the "Good Guys"?
Authored by: whoever57 on Thursday, June 26 2008 @ 05:11 PM EDT
While it sounds like Sun are the good guys -- and to some extent they clearly
are -- the "Dave" at Net App claims that Sun threatened NetApp with
Sun's patents first.

The exact history is not clear and perhaps both sides are neither entirely good
or entirely bad.

[ Reply to This | # ]

Sun and the FOSS Community
Authored by: Anonymous on Thursday, June 26 2008 @ 05:20 PM EDT

If Sun reads any of this, I'd like to add that they should consider what it means to have been on the supportive-end of FOSS.

Would they have been able to gather so much prior art in the event they had handled it on their own? Or so cheaply by not paying the legal team to find appropriate expertise?

In short, I think the management at Sun should ponder on the assistance provided and consider the old adage:

    Don't bite the hand that feeds you.
I imagine if Sun turns on the FOSS community again, depending on who feels "stung", the next time support is provided, it may not be so much. Another adage:
    Fool me once, shame on you, fool me twice, shame on me!
There are those people that will keep "turning the other cheek" as they are slapped, but I for one don't tend to respond so amicably when that occurs. That doesn't mean I'll actively seek out conflict, but it does mean I'm less likely to provide a helping hand to those that continue to be mean after I've been nice.


[ Reply to This | # ]

Maybe SUN and Novell will agree that OpenSolaris and the GPL are to be married?
Authored by: Anonymous on Thursday, June 26 2008 @ 05:54 PM EDT
Other than the topic of the dowery...

The idea of the GPL and OpenSolaris together again at last and forever as long
as the GPL is the GPL (all the IP including that certain files system considered
to be free, and all the rest of that IP), is already something that the children
want! So, why don't the parents get together and we can all be one big happy

We all want to see the kiss - and then attend the wedding party.

[ Reply to This | # ]

has this Hitz declaration been discussed here?
Authored by: Anonymous on Thursday, June 26 2008 @ 06:30 PM EDT
a most curious document.

doesn't it say in the rationale for patents that the patent holder is given the
benefit of the patent ONLY BECAUSE they're publishing it - not keeping it a
trade secret. The patent system is supposed to foster innovation.

the WHOLE POINT of the patent system is to PUBLICIZE the innovation, to
DISTRIBUTE the know - how.

And Hitz is complaining about publication?

wotta putz.

[ Reply to This | # ]

OpenSuSE 11.0
Authored by: Anonymous on Thursday, June 26 2008 @ 06:45 PM EDT
I know a lot of you are mad at Novel over Microsoft.

Well I am mad too but for a different reason.

Last week OpenSuse 11.0 was released.
Saturday I attempted to down load it.
First issue, there is only Live, Net, and DVD installation – no CD.
Oh well here we go again.
Down loaded net install, checked disk for proper code, and began installation
replacing current OpenSuSE 10.3 installation
Installation did not start.
Error message.
Not surprised been here before.
Started DVD download into laptop.
Laptop does not have download manager or DVD burner but can yank HD and burn on
different computer.
Download crashes after 4 hours. Unknown reason.
Next day go to work; talk to computer system adm. He attempts down load; down
load crashes. He resets up down load with down load manager and starts over.
Come home; attempt download. Download crashes; error message – HD full.
Delete old iso for Mandriva, OpenSuSE and Fedora. Start down load over.
Get up next morning down load not finished needing 3 more hours.
Shut down download go to work.
Come home from work start new down load.
Down Load crashes – Error message HD Full.
Repeat deletion of more iso of old complete Mandriva, Fedora, Scientific Linux,
and OpenSuse system (ie 5 CD each system).
Start download over.
Get up this morning down load crashed.
Shut computer down and go to work.
System admin comes in to office first thing gives me OpenSuSE 11.0 DVD and says
it took him 23 hours to download.
Come home.
Attempt to install OpenSuse 11.0 into computer running OpenSuSE 10.3.
Received the following error messages.

Unable to create repository from URL'cd:///?devices=/dev/sr1/dev/sr0

Valid material not found at specified URL(s)
-Can't copy /var/adm/mount/media to /var/catch/zypp/raw/RepositoryauM4pW
-Can't provide /media.1 : Can't copy /var/adm/mount/media to

Well I have Fedora 7, 8, and 9, OpenSuSE 10.2, and 10.3, and Sabasyan systems
running so it is no big deal to me and I do not need technical help.

Once I was on the OpenSuSE developers list and I suppose if I really cared I
cound return but I do not since OpenSuSE always has an issue with connecting to
US internet providers which has existed to my knowledge since the SuSE 5.3 days.
Some time you can connect and some times you can not for no apparent reason.
Most likely there is a reset command is not being sent but so what Fedora

Could post on Buggzilla but why bother the teckie part will be fixed by people
more competent than I.

[ Reply to This | # ]

Small addition to the nature of open source
Authored by: Anonymous on Thursday, June 26 2008 @ 10:15 PM EDT
>> Releasing code is not all there is to it.
>> Ethics,
>> fairness,
>> honesty

and fighting [*]
and arguing
Lots of fighting
and once the fighting is over,

and more fighting.
Even in the absence of Terekhov & his type, fights and arguments are ENDEMIC
to open source.

Daniel Robbins had a HOWTO on dealing with difficult contributors

[*] it's not a bad thing. I'm just pointing it out for a more complete picture

[ Reply to This | # ]

Brendan Scott's analogy
Authored by: Griffin3 on Friday, June 27 2008 @ 09:44 AM EDT

I dunno about Brendan Scott's analogy. Maybe it alludes to some corporate "pop out for coffee" culture that just doesn't makes sense for me. Then again, I'm now working for the government now, which is a culture unto itself.

How about something more like this:

Open source is like everyone bringing in a cake on Monday morning. If you want to work there effectively, you need to find a good bakery, or warm up your baking skills at home. What you can't do is show up with a store-bought cake, and then start charging everyone for plates and forks. In the open source world, everyone will eat with their hands, and build their own forks out of paper clips.

... okay, so, I'm still working on it.


[ Reply to This | # ]

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