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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.

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