Sun and NetApp agree to court fight in California

Sun and NetApp have agreed, as per Sun's wish, to have their group of IP infringement court actions moved to a California court from the the east Texas court, notorious for 'patent troll' cases.

Both companies are resident in northern California so this will reduce lawyer's travel fees as well as, hopefully, having more IT-savvy people decide the case.

This means that NetApp, which filed its anti-ZFScase in September in East Texas, has given way. Sun filed a case against NetApp, its riposte, in a northern California court and wanted the original NetApp hearing held there as well. The companies will mutually agree on a judge to hear the cases.

Sun's letter on the topic contains this jibe: "We are pleased that Network Appliance agreed to Sun's request and retracted its imprudent choice of venue for this litigation." Imprudent choice indeed.This could be an imprudent choice of an adjective, one that indicates Sun could be crowing about what it sees as a symbolic victory. Others might judge it as being childish.

In another move Sun, which had publicly appealed for early use of technology subsequently patented, legally known as prior art, has filed re-examination requests for three patents held by Network Appliance. Prior art can prevent a patent being granted or invalidate an existing one.

For example, Sun states that a re-examination request has been filed on: "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 appears to want NetApp to cave in and withdraw its anti-ZFS patent infringement case through facing counter-pressure from Sun aimed at destroying core NetApp technology patents. The re-exam requests are part of that.

In an astute move Sun has capitalised on open source community knowledge and support. But by agreeing to the court case location change but not backing down on its filed case NetApp has shown that it is still confident about the outcome of the cases.

It is a pity this going ahead. There is a lot of latent and, on my reading, substantial respect and even affection for both companies in the general storage and IT communities, and the wish is that this conflict could be resolved without court hearings.

The protracted SCO hearings have left a very nasty taste in the mouth. Please, please, not again.

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