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Just in case you thought Sun and NetApp were kidding around

Sun has launched yet another set of countersuits against NetApp, this time in California. “Sun was legally obligated to respond in Texas to the initial suit brought on September 5, 2007 by Network Appliance to forestall competition from the free ZFS technology,” Sun said in a statement emailed to press this week. The statement continued:

Today we filed additional counterclaims in California, and specifically under the Lanham Act and California Business and Professions Code, based on Network Appliance’s false statements to the public about the alleged use of Network Appliance patents in ZFS. In parallel, we will be bringing a motion before the court in California asking that the case filed in Texas be consolidated with the case filed today for trial in the Bay Area, headquarters to both Sun and Network Appliance. Today’s filing includes 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.

Since Sun was forced to litigate, we feel California is a more appropriate venue to do so for several reasons. First, Sun and Network Appliance are both headquartered in Northern California, within 10 miles of each other. Second, most discovery will take place in California, as many of the key inventors on the patents and primary counsel for both parties are based in California. From both a judicial and economic standpoint, it makes much more sense for the case to be in California.

Sun has accused NetApp of “venue shopping” by choosing the Eastern District of Texas. A Sun statement responding to NetApp’s original suit called it “a legal jurisdiction (East Texas) long favored by ‘patent trolls.'” The choice of district has been the source of head-scratching even from people who are still reserving judgement, given that the two companies are both located in California, as Sun’s statement points out.

Who knows what the truth is. It could also be that since the district has a history of patent litigation, NetApp might have felt that court would be better able to discern the truth out of the he-said she-said better than a court with less experience in California.

But the longer this goes on (and boy, has it gone on), the more I start to think that even with the technical background I’ve picked up and the familiarity I have with both companies from covering storage for years, I’m not sure I would be able to sort out who’s right here. If this ever gets to trial, I do not envy the judge or potential jurors. Not one bit.

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Thanks for the update Beth. The Texas venue may have something to do with the numerous cases filed there, even the recently filed case between IBM and Amazon. Started, October 2006 Ended May 2007 Tyler is a good venue for this case. As you can see IBM was able to resolve the patent issues within a few months. Technology doesn't require a long drawn out case, with thousands spent on discovery and patent evaluation. Only competing storage vendors win by pointing out uncertainty. Maybe you could do a one-to-one interview with Dave Hitz at NetApp on this recent filing, not with standing their unwillingness to discuss pending litigation of course :-) JK