Update on the Sun/NetApp ZFS patent litigation: Change of venue, prior art

A follow up on some previous coverage. It looks like Sun has provided an update to Matt about the pending ZFS litigation.

As of Friday, December 14, Sun has filed reexamination requests for three Network Appliance patents as part of its response to a lawsuit initially filed by Network Appliance against Sun on September 5, 2007. This follows the agreement last month with Network Appliance to transfer Network Appliance’s lawsuit from Texas and litigate it along with the case Sun filed in California. The motion to transfer was filed on November 21 and the cases are now assigned to a mutually agreed upon judge. With each company being headquartered in northern California and the majority of inventors and innovation in dispute originating in California, it makes sense for this case to be litigated in this jurisdiction. We are pleased that Network Appliance agreed to Sun’s request and retracted its imprudent choice of venue for this litigation.

Reexams have been filed on the NetApp WAFL patents that purportedly cover concepts such as copy on write, snapshot and writable snapshot. There is a significant amount of prior art describing this technology that was not in front of the US patent office when it first examined these patents. In just one example, the early innovation by Mendel Rosenblum and John Ousterhout on Log Structured File Systems, applauded in a NetApp blog as being inspirational to the founders, was not considered by the patent office in the examination of the NetApp patents.

Sun is committed to protecting innovation and the open source community against this attack. The reexamination of three Network Appliance patents seeks to ensure the open source community continues to have access to technology that Network Appliance did not invent. Sun is also in the process of identifying other Network Appliance patents to be reexamined. We continue to receive support from the open source community in terms of prior art and appreciate the community response to protect innovation. We would like to thank those who have sent in relevant art that has been used in connection with the reexamination requests.

Sun’s actions are in response to the suit Network Appliance brought against the company to forestall competition from the free ZFS technology. Sun’s earlier filings include patent counterclaims against the entirety of Network Appliance’s product line, including the entire NetApp Enterprise Fabric Attached Storage (FAS) products, V-series products using Data ONTAP software, and NearStore products, seeking both injunction and monetary damages.

Sun is confident in our patents and claims against Network Appliance, and pleased with the direction of our case. To view more information, including the filings, visit Sun’s Open Source Community Support page.

I don’t see any response to this from NetApp yet. It did seem odd that the suit was filed in the patent friendly Texas jurisdiction, when both companies are located in California. I’ll post additional updates on this topic as the arise.


Solaris and Dell

Jonathan recently announced a partnership with Dell on his blog.

First, we announced a key relationship with Dell, through which they’ll be OEM’ing Solaris, and directly supporting customers running Solaris on Dell systems. Second, we announced our free/open source virtualization roadmap, starting with xVM and xVM OpsCenter, our hypervisor and management product set.

Truth be told, the relationship with Dell has been in the making for a while – I flew down to Texas last year to have dinner at his house (with a fortuitous 180 knot tail wind – sadly, I had return the same night with a 180 knot headwind). If you’re thinking, “hm, didn’t Sun’s relationship with Intel start with dinner, too?” you’re picking up on a theme – great partnerships start with a meal, in my book. At that dinner, we began discussing ways we could work together. Since then, we’ve both heard from a ton of customers that they’re running Solaris (and Sun Software, broadly) on Dell systems – and they’d like us to work together to make the experience a seamless one. It’s important to note, of the Solaris instances distributed into the world, roughly a third run on Dell – that’s certainly motiviation for us both to work together.

I was quite surprised to read that 1 out of 3 Solaris instances run on a Dell machine. Maybe that’s why Joyent just signed the deal that they did. On the surface, though, this seems like a somewhat odd partnership. While Sun may be trying to pickup some software services revenue, they are still a hardware company. It seems that Forbes picked up on this:

Nevertheless, the deal is a turnabout for the two companies. Sun and Dell have been clawing at each other for more than a decade. Last year, Sun grabbed back the No. 3 spot in the server market from Dell.

Yet the two companies still do less business, put together, than HP alone. In the second quarter of this year, IBM sold $4.1 billion worth of servers, while HP sold $3.7 billion, Sun sold $1.76 billion and Dell $1.5 billion.

Now, by buddying up, Dell and Sun are trying to wring sales out of customers who are going in different directions. If you’re putting Solaris on Dell machines, you’re either already a Sun customer–and you’re tiptoeing away from the Santa Clara, Calif.-based software and server vendor–or you’re a Dell customer fooling around with heavy-duty Unix, and chances are you’re looking to trade up to bigger servers than Dell now sells.

If you look at things on a longer timeline it makes a bit more sense. Sun is trying to move down into smaller markets and Dell is trying to move up into bigger ones. They are both fighting competitors that are significantly bigger. Whether the strategy works remains to be seen. I’m still not sure that the Sun corporate culture will allow them to play well in the commodity sandbox. They are used to be innovative and interesting. High volume low margin products that compete on price just doesn’t seem their style. One thing is clear, however. Sun is doing everything in their power to turn Solaris into a true competitor to Linux. That should be good for everyone.


Some LinuxQuestions.org Stats

Every once and a while I like to post a quick update that includes some stats about LQ. Here are a couple for the month of October 2007.

* A total of 277 distinct Browsers visited LQ last month. Those with more than 1%:

Firefox 61.99%
IE 24.14%
Mozilla 5.50%
Opera 4.29%
Konqueror 2.18%
Safari 1.53%

Operating Systems
* A total of 23 distinct Operating Systems visited LQ last month. Those with more than 1%:

Windows 52.99%
Linux 43.09%
Macintosh 3.10%

Browser and OS combo
* The top 5 Browser/OS combos are:

Firefox / Linux 33.24%
Firefox / Windows 26.66%
IE / Windows 23.84%
Mozilla / Linux 5.33%
Opera / Linux 2.30%
Konqueror / Linux 2.30%

RSS feed
* The RSS feed with the most subscribers is LQ Latest Threads. RSS readers with more than 1%

Google Feedfetcher 77%
Google Desktop 10%
Firefox Live Bookmarks 3%
Firefox Live Bookmarks (Version 1) 2%
Bloglines 1%
MyYahoo 1%

* 95.51% of visitors had Java support
* 88.29% of visitors had Flash support
* 97% browse with a screen resolution 1024×768 or greater

LQ is certainly not representative of the web as a whole, but interesting nonetheless. Enjoy.


Sun Sues NetApp: Says "You Cannot Unfree What Is Free"

Dave Hitz, Founder and EVP at NetApp, has responded to a post made by Sun CEO Jonathan Schwartz. Here’s his conclusion:

Jonathan’s claim that “you cannot unfree what is free” sets a very dangerous precedent. It says that you can steal anything, as long as you open source it afterwards. That can’t be right! I do understand that many open source proponents argue there should be no legal protection at all for information. “Information wants to be free.” But even if Jonathan believes that, he ought to wait until the law changes before taking Sun down that path.

One of the most important rules of open source is that you must only give away things that belong to you. If protected information does leak into open source, it will probably live forever in the web, but that isn’t the issue. To me, the issue is that large corporations should stop making a profit on protected information that doesn’t belong to them. That’s what we’re asking here.

Now, I’m not a lawyer and I don’t even play one on TV. I find it hard to believe that Sun ripped off code from someone and then Open Sourced the product so everyone could see the violation. Anything is possible I guess, but that doesn’t seem rationale. What’s interesting to me here is that both CEO’s are discussing this issue on their respective blog, in very a human tone and with comments enabled.


ZFS Puts Net App Viability at Risk?

It’s good to see a tech company acting sanely when it comes to litigation. A few excerpts from Jonathan Schwartz’s Weblog:

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.

So we have a CEO that, even faced with being sued is trying to personally reach out and avoid litigation. Kudos. It’s unfortunate that it didn’t work out, but it’s great to see how much Jonathan groks Open Source. So where are things headed?

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.

NTAP is down about 3% so far today. It should be interesting to watch how this unfold, not only for NetApp clients but also for its ramification for Open Source.


Sun Open Source "summit"

Sun continues to be less schizo about Open Source and recently gathered media and employees at their main campus for an Open Source “summit” briefing.

Cited were improvements like a binary release of OpenSolaris and plans for dynamic scripting support in Sun’s Java Virtual Machine. Executives from throughout the company met with the media at Sun’s Santa Clara, Calif. headquarters campus for an open-source “summit” briefing.

“We have so many people who work on open source inside Sun,” that they must be brought together for an annual conference, said Simon Phipps, chief open-source officer at the company.

Project Indiana is something I find particularly interesting. Where Sun goes with it is something I’ll be watching closely. The implications of having two solid Open Source operating systems with real traction are significant. That’s not to say that the BSD’s for instance aren’t solid (in fact, they’re rock solid), just that none of them have seen wide mainstream adoption. It’s also good to see that 96 percent of Java code has been cleared for Open Source use. That should mean that a public release is well on its way.



OpenOffice.org has been in the news for a couple reasons this week. On one hand, IBM announced that is was releasing Lotus Symphony, an office suite that is based on OpenOffice.org code and runs in an Eclipse instance. On the other hand, some of the community is up in arms about the control Sun continues to have over the project. Note that I am not involved in the OOo community on a daily basis, so I don’t know if the CW article is just a journalistic powder keg or a legitimate impending feud. Looking at the issues at hand, I do have a little commentary however. When you look at successful Open Source projects of a certain size, they typically have some kind of benevolent dictator at the top. Sometimes it’s a person (Linux for example), sometimes it’s a Foundation (Firefox, Apache, Eclipse) and sometimes it’s a company (Alfresco,OpenOffice). Whatever the structure, that direction and leadership from the top is critical to the success of a project. It’s clear that up until now, Sun has been the “top” of the OpenOffice.org project. They employee about 85% of the contributors and all official commits must go through Hamburg. Don’t forget that OpenOffice.org is the result of Sun acquiring Star Office and open sourcing it. Keeping that in mind, it’s clear that some features have not made it into the product because Sun did not want it to happen. That being said, I think that overall Sun has done a very good job with the project.

Now, with IBM joining the project on an official level and also committing 35 head count from China, things may be set to change. Have we reached a point where Sun should let go and form an “OpenOffice.org Foundation”? If so, how much control of that organization should they retain? Or, is it OK for a company that started an Open Source project to maintain control if they are providing good leadership? OpenOffice.org is hugely important to the Open Source community, so this is an important discussion. I think that an OpenOffice.org Foundation makes the most sense in this case, but I could see a general argument for maintaining company control (at least in some cases). What do you think?

One final comment. I forget sometimes how difficult a position Sun has put themselves in after years of being schizo about Open Source. For the last couple of years they have done some truly awesome things, yet they continue to take a beating in the community. I wonder how long it is until some will think they have paid their dues. With some of the OpenSolaris vs. Linux posturing that is sure to come (more comments on that soon) my guess is that Sun may not get the credit they deserve for some time.