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The NetApp-Sun Patent Litigation Is On: Anyone Know of Any Prior Art? - Updated 2Xs
Thursday, October 25 2007 @ 01:20 AM EDT

When Network Appliance first announced it had filed a lawsuit against Sun Microsystems early in September over alleged patent infringement in ZFS, I didn't know what to make of it.

The public arguing back and forth didn't mean much to me. Even the Sun email [PDF] to NetApp the latter made public to bolster its side of the argument could be interpreted more than one way, and it was also clearly the middle of a conversation, with no way to know for certain what had happened before the email. It began, after all, "We are in receipt of your October 23, 2006 letter..." Personally, I think it's bad form to reveal private communications, but if you do, cherry picking one out of several isn't convincing to me, and anyway I like to reach conclusions based on what I see officially filed in courts. Compare what SCO told the media ("a mountain of infringing code") and what it told Judge Dale Kimball in a courthouse in Utah years later (in essence: "no code, but if you let us spring a surprise on IBM after discovery is closed, we can find maybe some methods and concepts to hit them with").

Update: Note that Sun now has a page on the NetApp litigation that provides an easy description of all the patents that even I can understand.

Update 2: Dave Hitz has now responded on his blog.

The NetApp complaint [PDF] along with the exhibits, like most patent complaints, wasn't too helpful, although I couldn't help noticing that the complaint clearly states that it was StorageTek that allegedly claimed NetApp violated its patents, prior to Sun acquiring StorageTeK. So that little detail made me wonder about NetApp's motives in starting the complaint, "Sun initiated this dispute by asserting that NetApp infringes patents presently held by Sun." The complaint goes on to relate about the StorageTek acquisition, but it struck me as odd, nonetheless. When I see lawyers slightly stretch, my alarm bells start to ring. And while NetApp declared loudly that it wasn't like SCO, I decided to wait and watch. Why, I asked myself would it be so worried about being perceived that way, if it *wasn't* like SCO?

Then nothing much happened, no answer from Sun was filed, and I knew from experience that this meant that the parties were likely in settlement discussions. That is quite typical after a complaint is filed, and often you can work something out without the expense and distraction of litigation. As you've seen in the SCO wars, the annoyance factor alone is considerable, so usually you at least try to solve things, and it's easier when both sides know litigation is inevitable if no agreement can be reached.

So I decided I didn't have to know who was right or who was wrong. I did have a question about NetApp's story though: Why, I asked myself, would Sun go after NetApp for patent licenses, which is the story NetApp told, and then open source it all shortly thereafter?

I know the Sun email mentioned a cross license, but that seemed to follow NetApp claiming Sun was infringing its patents, and frankly, a cross license is usually how these things get settled to just make it go away. So I still had this question in my mind. And significantly, I saw nothing in the email threatening litigation at all. So why, I asked myself, was NetApp litigating?

Sometimes, when you see a lawsuit that doesn't make sense to you, it means it is about something other than what it seems. The SCO litigation is a beautiful example of litigation as competitive strategy if one assumes, as I do personally that Microsoft was behind that SCOcart pushing it along, at least in the beginning.

Now, I'm not saying it's impossible for a corporation to suddenly change course, but open sourcing software isn't something you just snap your fingers and you do it. When Sun wanted to open source Solaris, it took literally years to make sure every permission needed was obtained. Now, if you develop an application yourself, it's easier, obviously, but it's still not like chewing gum. So why, really, would Sun go after NetApp and then open source the patented software? It made no legal sense to me. This detail of NetApp's story remained a puzzlement in my mind.

Wednesday, I read two articles that put it into clear relief, and made it clear to me that Groklaw should get involved and cover this litigation. The first was this press release, where NetApp recounts how proud it is to be increasing its involvement with Microsoft, titled "NetApp Increases Commitment to Microsoft Products and Technologies, Delivering Business Value to Microsoft Customers and ISVs Worldwide".

Now, I know Sun has partnerships with Microsoft too, so it's not conclusive. Most businesses do have to do some business with the monopoly. But the tone of the press release does say something to me:

Network Appliance, Inc. (NASDAQ: NTAP) today announced it is increasing its commitment to Microsoft products and technologies by increasing its investment of hardware and software data management solutions in Microsoft Technology Centers (MTCs) worldwide. With hundreds of customers and Microsoft independent software vendor (ISV) partners around the world having completed successful proofs of concept, architectural design sessions, and strategy briefings leveraging NetApp® storage and data management solutions, NetApp is deploying additional resources into MTCs worldwide, to further demonstrate its commitment to solving customers’ business problems using the Microsoft Windows Server platform, including Exchange Server, Microsoft SQL Server, Microsoft Office SharePoint Server, and other Microsoft products and technologies. This global strategic relationship enables NetApp to better serve customers in MTCs through greater consistency in product offerings and delivery, no matter where customers do business around the world. Through its multimillion-dollar global MTC investment of hardware and software, NetApp can leverage best-in-class environments the world over to deliver the exact data management solutions customers require.

“The stature of Network Appliance as a global participant in the MTC program will help provide demonstrated value to customers and ISVs worldwide,” said Simon Witts, corporate vice president, Enterprise and Partner Group, Microsoft Corp. “Microsoft is committed to working with leading storage vendors such as NetApp to demonstrate the value Microsoft applications and technologies provide customers. This growth allows joint customers to take advantage of Microsoft and NetApp technical expertise in the MTC program to solve their most pressing business and technical challenges.”

“NetApp is proud to increase its commitment to Microsoft and the MTCs. Our increased investment in the MTC program demonstrates our current success and desire to serve customers using the Windows Server platform,” said Patrick Rogers, vice president of Products and Partners at Network Appliance. “As the fastest-growing SAN vendor in the marketplace today, NetApp provides significant value to our customers who are deploying Microsoft products and technologies. We are excited to continue our record of achievement, innovation, and integration with the Windows Server platform and leveraging MTCs worldwide to demonstrate the value NetApp and Microsoft bring to our mutual customers and partners.”

Increasing its involvement with Waldo, eh? What if, I asked myself, this is part of what seems to be a coordinated push by the proprietary dudes to block, harass and hold back open source with litigation? That is Sun's story, after all, and the press release brought that story back forcefully to my mind. So I took a look at Jonathan Schwarz's blog, and lo and behold, Sun is going to file an answer with counterclaims:

So later this week, we're going to use our defensive portfolio to respond to Network Appliance, filing a comprehensive reciprocal suit. 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. By opting to litigate vs. innovate, they are disrupting their customers and employees across the world.

In addition to seeking the removal of their products from the marketplace, 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 (in specific, The Software Freedom Law Center and the Peer to Patent initiative), and to the legal defense of free software innovators.

I think it's time to look for prior art. You can find all the NetApp patents here, and if you know of any prior art, I think it would be useful to post it. For one thing, the NetApp patents might end up used against Linux file systems too, life in the big city being what it is and all.

I also feel that when a company open sources its own code, the immediate response shouldn't be punishment by litigation to try to make it stop. IBM has been through it and now Sun. IBM was guilty of nothing at all, at least from all we've seen in the litigation. Nothing except supporting Open Source and Linux. Now Sun decides to join the Open Source fun, and wham, litigation. I begin to discern a pattern. I guess the proprietary folks have a strategy to use patents as the battering ram.

So, while I keep an open mind, I'm sure that getting rid of patents with prior art is worth doing, no matter who holds them, whenever possible. Software and patents need to get a divorce before they kill each other. For years, the USPTO has granted patents even they now realize they should not have allowed to issue. And those chickens are coming home to roost. Unless we get rid of as many patents as we can, software development will become something people used to do. I doubt IBM or Sun would agree with me, and they'd probably prefer that only bad patents be tossed overboard, but they cling to patents because it's what is normal to them. It's not normal to me. It's like seeing seriously overweight people gobbling junk food and washing it down with soda. You see their doom approaching and just feel like saying, "Hey, there is an alternative." Only the big guys will have any hope of developing software if something isn't done about patents, and there will be no more FOSS. It's that stark.

Don't participate in finding prior art, or read the patents, if you work in this particular area of software development, of course. NetApp includes as Exhibit B an article on The Zettabye File System [PDF] and a presentation as Exhibit C [PDF]. Exhibit D is an article about WAFL, the NetApp competing file system. It begins:

This paper describes WAFL TM (Write Anywhere File Layout), which is a file system designed specifically to work in an NFS appliance. The primary focus is on the algorithms and data structures that WAFL uses to implement Snapshots , which are read-only clones of the active file system. WAFL uses a copy-on-write technique to minimize the disk space that Snapshots consume. This paper also describes how WAFL uses Snapshots to eliminate the need for file system consistency checking after an unclean shutdown.

Keep in mind that the email from Sun's lawyer to Network Appliance stated: "For instance, it is well known that ZFS does not use NV-RAM (http://www.sun.com/software/solaris/faqs/zfs.xml, question 12), which is required by the claims in at least one of the patents you provided." As you see, the key is to read the claims and distinguish what ZFS does from the claims, one patent after another, claim by claim. One patent, Exhibit A, dates back to 1998. Others are later. Is it possible that we'll knock out both sides' patents with prior art? I suppose it's possible, and I don't care. I'd call that good. Then this lawsuit could pack up and go home.

I note that Dave Hitz on his blog back in September wrote about what inspired WAFL, and I'm thinking there might be some prior art found by following the threads he provides:

VMware’s Founder Helped To Inspire WAFL

At VMworld yesterday, I got to meet with Mendel Rosenblum (http://simos.stanford.edu/~mendel/), one of VMware’s founders. I want to share the story of how he helped inspire WAFL.

In the early days of NetApp, when we first started developing our WAFL file system, we drew inspiration from three main file systems: FFS, Episode and LFS:

The Berkeley Fast File System (FFS) was written by Kirk McKusick. I had worked on FFS at two prior companies (MIPS and Auspex), so I was very familiar with it.

The Episode File System was developed by Transarc, which spun out of the Andrew File System (AFS) project at Carnegie Mellon. One of the architects of Episode was Mike Kazar, who joined NetApp when we acquired Spinnaker.

The Log-structured File System (LFS) was developed as part of John Ousterhout’s Sprite operating system project at Berkeley.

The graduate student who actually designed and implemented LFS was Mendel Rosenblum. It took me quite a few years to figure out that this guy whose work I admired 15 years ago was the same guy who started VMware. Imagine my surprise!

I think you should read what Schwartz wrote in his blog entry, so I asked for permission to post it in full.

*******************************************

Jonathan's Blog

ZFS Puts Net App Viability at Risk?

About a month ago, Network Appliance sued Sun to try 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 ton of money - and administrators save a ton of time. The economic impact is staggering - and understandably threatening to Net App and other proprietary companies. As is all free innovation, at some level.

So last week, I reached out to their CEO to see how we could avoid litigation. I have no interest whatever in suing them. None whatever.

Their objectives were clear - number one, they'd like us to unfree ZFS, to retract it from the free software community. Which reflects a common misconception among proprietary companies - that you can unfree, free. You cannot.

Second, they want us to limit ZFS's allowable field of use to computers - and to forbid its use in storage devices. Which is quizzical to say the least - in our view, computers are storage devices, and vice versa (in the picture on the right - where's the storage? Answer: everywhere). So that, too, is an impractical solution.

We're left with the following: we're unwilling to retract innovation from the free software community, and we can't tolerate an encumbrance that limits ZFS's value - to our customers, the community at large, or Sun's shareholders.

So now it looks like we can't avoid responding to their litigation, as frustrated as I am by that (as I said, we have zero interest in suing them). I wanted to outline our response (even if it tips off the folks at Net App), and for everyone to know where we're headed.

First, the basics. Sun indemnifies all its customers against IP claims like this. That is, we've always protected our markets from trolls, so customers can continue to use ZFS without concern for spurious patent and copyright issues. We stand behind our innovation, and our customers.

Second, Sun protects the communities using our technologies under free software licenses. As an example, Apple is including ZFS is in their upcoming "Leopard" OS X release. This is happening without any payment to Sun (that's how truly free software works). Under the license, we've waived all rights to sue them for any of the patents or copyright associated with ZFS. We've let Apple know we will use our patent portfolio to protect them and the Mac ZFS community from Net App. With or without a commercial relationship to Sun.

That's true for any licensee - in fact, Net App could adopt ZFS today and receive the same protection. The port is done to FreeBSD, the OS on which Net App's filers are built. They could use it without owing us a dime, and they'd be protected from our portfolio. (The quid pro quo? They'd have to agree to offer reciprocal protection to Sun.)

Third, we file patents defensively. Like MySQL or Red Hat, companies similarly competing in the free software marketplace, we file patents to protect the communities from which innovation and opportunity spring. Unlike smaller free software companies, we have one of the largest patent arsenals on the internet, numbering more than 14,000 issued and pending globally. Our portfolio touches nearly every aspect of network computing, from multi-core silicon and opto-electronics, to search and of course, a huge array of patents across storage systems and software - to which Network Appliance has decided to expose themselves.

And to be clear, once again, we have no interest whatever in suing NetApps - we didn't before this case, and we don't now. But given the impracticality of what they're seeking as resolution, to take back an innovation that helps their customers as much as ours, we have no choice but to respond in court.

So later this week, we're going to use our defensive portfolio to respond to Network Appliance, filing a comprehensive reciprocal suit. 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. By opting to litigate vs. innovate, they are disrupting their customers and employees across the world.

In addition to seeking the removal of their products from the marketplace, 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 (in specific, The Software Freedom Law Center and the Peer to Patent initiative), and to the legal defense of free software innovators. We will continue to fund the aggressive reexamination of spurious patents used against the community (which we've been doing behind the scenes on behalf of several open source innovators). Whatever's left over will fuel a venture fund fostering innovation in the free software community.

And on that note, I want to thank the free software advocates from across the world who've offered expert testimony, and reams of prior art to defend ZFS, and the community of which Sun's a part. Please rest assured we will use this opportunity to highlight the futility of using software patents to forestall competition - in the commercial marketplace, and among the free community.

In the interim, if you're a Net App customer looking for alternatives, we would be pleased to talk to you about lowering the cost of proprietary storage - if you're a technical sort, start by trying out ZFS in software form. (There are also lots of reviews available, this one just posted). We'd also be happy to send you a free trial Storage System based on ZFS (pick the x4500 here). And remember, we indemnify our customers.

The shift to commodity infrastructure is as inevitable as the rising tide - although for some, I'm sure it feels like a rogue wave.


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