I hadn’t planned to blog any more on the Sun/NetApp patentlitigation, but Mike Dillon, Sun’s General Counsel, has recently made some veryoptimistic posts (hereand here), and Ineed to respond. Dillon shared the results of some pre-trial wrangling—Markmanhearings and preliminary Patent Office decisions—but sometimes when you focuson intricate details, you miss the big picture. (For background on the lawsuit,see here,here, and here.)
To me, the best indicator of strength is to look at whichparty wants to get on with the case (the one with a strong position), and whichparty consistently drags its feet and tries to delay (the one with the weakposition).
Sun is requesting a “stay,” which is a request to put ourclaims on hold and delay the trial, because the Patent Office has issued apreliminary rejection of claims in 3 of our patents (out of 16). Such a rulingis not unusual for patents being tried for the first time, and there are twoways to resolve the issue. Waiting for the Patent Office, which is what Sunwants to do, is the slow way. The patent office currently has a backlog of 730,000 patents,and they can’t hire fast enough to close the gap. Waiting could take years. Thelegal system isn’t always fast, but it can be. When NetApp agreed to relocatethe case to California, we did it on the condition that we’d get to trialrelatively quickly. Dillon mentioned issues with three patents, but NetAppcurrently has 16 WAFL patents that we believe apply to ZFS, with more on theway. We believe that we have a strong case, and we want to get it resolved.
As I have said in earlier blogs, I like open source. Infact, I have personally written and contributed open source code! NetApp hasalso made many corporate contributions. However, I believe that open sourcecontributors must always follow one critical guideline: Only give away thingsthat belong to you. This is where wethink that Sun isn’t playing by the rules.
Here’s the big picture. If you were Sun, and if you were confident inyour case, wouldn’t you want to clear the name of ZFS as quickly as possible,to reassure your customers and partners? By contrast, if you were NetApp, andyou had no confidence in your patents, wouldn’t you try to slow things down tomaintain the cloud of doubt as long as possible? I believe we have a strongcase, but whether we are right or wrong, isn’t it best for everyone involved toget the answer as quickly as possible?