decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books


Groklaw Gear

Click here to send an email to the editor of this weblog.

You won't find me on Facebook


Donate Paypal

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

NetApp-Sun Litigation News: USPTO Order on NetApp's '292 Patent
Wednesday, October 08 2008 @ 01:15 AM EDT

There's news from the NetApp-Sun patent litigation front, and I think you'll like it. Sun's general counsel, Mike Dillon, posts the news that the US Patent Office has now responded to all six of Sun's reexamination requests, which they filed based on prior art. We've been waiting for the order on the reexamination from the USPTO on the claims of '292. Dillon's the lawyer, not me, and he says the USPTO has now rejected all the '292 claims, but I'd describe it from the Order [PDF] from the USPTO more that it found that the prior art "raises substantial new questions of patentability" as to the claims. This isn't yet the end of the process, but it's still very good news for Sun, no matter how you describe it.

Last we looked, the USPTO had responded to five of the six reexamination requests. I knew you'd want to hear about this, because some of you did research last October on possible prior art on that particular patent. You might find it useful to look over the order in detail to see how the USPTO viewed prior art in the specifics, with the goal of equipping us to be more and more effective. There is also an Order [PDF] regarding the Markman hearing matters, which is also favorable to Sun, Dillon tells us. I've no doubt Sun is rejoicing, because their ZFS technology is very important to them.

I wonder how many times folks will sue Open Source projects before they realize that if there is one thing I believe you will never find it's anyone deliberately trying to misuse someone's IP?

Here, first, are the details from Dillon on the USPTO decision:

After NetApp filed its lawsuit to halt adoption of Sun's open source ZFS technology, we responded by filing reexamination requests with the PTO citing the extensive amount of highly relevant prior art that was not disclosed or considered when NetApp originally filed its patents. The patent office clearly agreed with the relevance of this prior art, as demonstrated by its rejection of the claims across all of the reexaminations. Of these patents, three have been described by NetApp as "core" (US Patent Nos. 6,857,001; 6,892,211; and 5,819,292). Here's the current status of each of them:
NetApp Patent No. 6,857,001 - The PTO rejected all 63 claims of the patent based on 10 prior art references provided by Sun. In addition, the trial court has agreed to remove that patent from the litigation for now pending the final reexamination by the PTO.

NetApp Patent No. 6,892,211 - The PTO rejected all 24 claims of the patent based on 12 prior art references provided by Sun. There is currently a request pending before the trial judge to stay this patent from the litigation as well.

NetApp Patent No. 5,819,292 - And late last week, we were informed that the PTO has rejected all of the asserted claims of this patent relying on at least two separate prior art references out of the many provided by Sun. (The examiner felt that to consider the other references would be "redundant".)

And here's the info on the Markman Order:

In summary, the court agreed with Sun's interpretation on six of the disputed terms (two of which the court adopted with slight modification) and with NetApp on one. As to the remaining terms, the court either formulated its own interpretation or requested that the parties propose a further construction (i.e. definition). If you want to read the Order from the Markman hearing you can find it here.

Most significantly, the Court found each of the asserted claims in NetApp's 7,200,715 patent relating to RAID technology to be "indefinite" - meaning that someone with experience in this area of technology could not understand the limits of the claimed invention. With regard to NetApp's '715 patent, the court agreed with Sun's position that the claims of the patent are flatly inconsistent with and impossible under the teaching of the patent specification. In effect, unless NetApp appeals and this finding is reversed, the '715 patent is effectively invalidated in this case and against others in the future.

In addition, the Court's findings on the terms "server identification data", "domain name", "portion of a communication" "element of a communication" and "completing a write operation within a local processing node" further strengthen our position that the processors, network interface and systems management software used across NetApp's product line infringe Sun's patents.

Meanwhile ZFS and OpenStorage continue to gain momentum.


NetApp-Sun Litigation News: USPTO Order on NetApp's '292 Patent | 237 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: Thalaska on Wednesday, October 08 2008 @ 01:36 AM EDT
Corrections Here. Please put the correction in the title.

[ Reply to This | # ]

Off Topic Here
Authored by: Thalaska on Wednesday, October 08 2008 @ 01:38 AM EDT
Please make sure they are off topic.

[ Reply to This | # ]

News Picks Here
Authored by: Thalaska on Wednesday, October 08 2008 @ 01:39 AM EDT
And we get the Hat trick.

[ Reply to This | # ]

The lawsuit comes around to bite them
Authored by: stegu on Wednesday, October 08 2008 @ 04:53 AM EDT
> the processors, network interface and systems management
> software used across NetApp's product line infringe Sun's
> patents.

This could turn out to be an epic failure, like for SCO.
"You owe us some of your money."
"Actually, you owe *us* money. Rather more than you have, in fact."

[ Reply to This | # ]

NetApp-Sun Litigation News: USPTO Order on NetApp's '292 Patent
Authored by: Anonymous on Wednesday, October 08 2008 @ 06:35 AM EDT
A few people in OSS misuse IP deliberately, but those are mostly insignificant
projects put together by amateur coders who think that kludging together
existing code with reverse-engineered code is the same as programming. Their
projects are usually spectacular failures.

[ Reply to This | # ]

You will never find anyone in FOSS deliberately trying to misuse someone's IP...
Authored by: Anonymous on Wednesday, October 08 2008 @ 11:48 AM EDT

Actually, I would expect that to occur.

But not from the direction companies like MS would like to see. I would actually expect someone like MS to use cloak-n-dagger tactics to hire someone to provide code to some project... some project in a tactical position to disrupt a much larger area.

If the individual has the correct marching orders, they'll behave themselves for some time to build the trust factor. At which point they'll attempt to slip something in.

However, there's a few things wrong with that tactic:

    A: Companies like MS don't like to give the kind of time required for such cloak-n-dagger tactics.
    B: The infringed item(s) likely can't be in the appropriate product for long before the limitations with regards raising lawsuit kick in.
    C: Once the infringement is known, if true infringement is found, the FOSS team on the project will rewrite whatever the infringement is in less time then it seems to take a court to rule on a motion (cept the bankruptcy court, they seem to move rather quick with regards the bankrupt company even if someone objects).
Therin lies the biggest problem for companies that don't appreciate the "threat" FOSS provides: it tends to be a community effort to make things better for all. That includes a community defense to decrease any community risk as much as possible.

That seems to be a concept anyone that wishes to enslave anyone else (whether physically, financially, mentally, etc) simply can't seem to grasp. They're used to thinking in terms of "me" and have a lot of difficulty when they run into a group that choose to think in terms of "us".


[ Reply to This | # ]

Suing open source projects
Authored by: DannyB on Wednesday, October 08 2008 @ 03:29 PM EDT
"I am the greatest boxer of all time! With my boxing gloves on, I will
demonstrate my superior boxing skills against these hornets by using their
hornets' nest as a punching bag! Just watch me win a round of boxing against
these hornets!"

Yeah, right.

A hornets nest hanging from a tree branch may superficially resemble a punching

An open source project may superficially resemble a past victim that you have
bullied. Prior to the new social networking.

Look how much comedy value SCO has given us. Look at enemies of open source
licenses that have given us court outcomes that strengthened our side. Not just
the recent model railroad case either. Not just in the US either. What SCO
didn't realize was how Groklaw would instantly galvanize the entire community
and cause programmers to take license issues seriously and not just as an

The price of freedom is eternal litigation.

[ Reply to This | # ]

"if there is one thing I believe you will never find it's anyone deliberately trying to misuse
Authored by: Steve on Thursday, October 09 2008 @ 09:39 AM EDT
Counterexample (names changed to protect the infringing)

I knew the management of a proprietary software company (call them XCo). Part of
their competition was a free software project (call it OpenY). The maintainer of
OpenY created a new website.

The new OpenY website was a word for word, page for page copy of the XCo
website, except for substituting the name OpenY for XCo's product. I personally
reviewed a dozen pages using visual inspection and "diff" tools and
found that the text was identical except for the name.

A web page, like any other written material, is copyrighted as soon as it is
created. The XCo website in particular represented hundreds of hours of creative
work at great expense.

There was no lawsuit; XCo asked a third party to communicate with OpenY's
maintainer, and eventually the OpenY maintainer replaced the copied web text
with original creations.

But PJ, I have found at least one FOSS programmer willing to deliberately misuse
another's IP. Free and open source software programmers are humans, not angels.


[ Reply to This | # ]

NetApp-Sun Litigation News: USPTO Order on NetApp's '292 Patent
Authored by: Anonymous on Thursday, October 09 2008 @ 10:53 AM EDT
http:/ / What's this about Sun denying NetApp access to NFS? Can they actually do that? If so, Sun holds a lot of cards in the marketplace, given how universal the usage of NFS is...

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )