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Sun countersues NetApp over ZFS

The saga of ZFS continues with Sun seeking to stop NetApp from shipping any and all filer products through a countersuit filed yesterday.

The patent litigation fight between Sun Microsystems Inc. and Network Appliance Inc. (NetApp) escalated yesterday when SUN CEO Jonathan Schwartz revealed on his blog that Sun has filed a countersuit against NetApp seeking damages and an injunction against the shipment of any new filer products to the marketplace.

Schwartz said in his blog that he attempted a conversation with NetApp CEO Dan Warmenhoven last week seeking a resolution to the suit filed by NetApp on Sept. 5. Schwartz wrote that Warmenhoven demanded Sun remove ZFS from storage devices and retract it from the open source community.

Schwartz's reaction to the first demand speaks volumes about the philosophical differences between the two companies. "[It was] quizzical to say the least, in our view, computers are storage devices and vice versa," he wrote.

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With the two parties unable to reach a compromise, according to Schwartz, Sun decided to countersue. "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," Schwartz wrote. "By opting to litigate vs. innovate, they are disrupting their customers and employees across the world."

Who's disrupting whom, in this case, has been a matter of debate so far. NetApp said Sun first approached it with the threat of such a lawsuit and that it filed suit first in order to protect its IP. Sun said its suit is the defensive one. "We have no interest whatever in suing NetApps [sic]," Schwartz wrote. "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."

The case has also spread into other corners of the market and broadened, in some places, into a debate about open source vs. proprietary technology in general. Apple Inc. plans to use ZFS in its Mac OS X Leopard product. Schwartz wrote that Sun has waived all rights to sue Apple, but so far there has been no word on NetApp's view on Leopard. According to Schwartz, Warmenhoven was willing to concede the use of ZFS on nonstorage systems.

Meanwhile, ZFS and its attendant IP are at the core of both companies' product strategies. Snapshots, a particular bone of contention in this case, are at the heart of NetApp's data management software, to say nothing of the file system, WAFL, which runs its storage systems.

At the same time, Sun's vision is that server processors and Ethernet pipes are catching up to traditional storage subsystems and Fibre Channel fabrics in terms of performance and scalability -- essentially a different twist on Sun's "the network is the computer" mantra that suggests "the server is the SAN."

NetApp founder and executive vice president Dave Hitz responded via his blog today, calling Sun's try for a permanent injunction to remove most of NetApp's products from the market "exactly the broad but vague threat that gets people so frustrated with patent litigation." Hitz added: "I have tried very hard in my blog to be unusually open – very detailed and specific – about how Sun is infringing our intellectual property. I've been trying to set a higher standard in how companies conduct patent litigation, and I'm disappointed in Jonathan for not doing better than this."

When it comes to storage specifically, Sun's roadmap remains murky. It announced the melding of its server and storage business units earlier this month and made some mention of general storage direction around the announcement of its own server virtualization hypervisor, xVM, a few days later. Aside from ZFS and Thumper, no specific storage products or services were mentioned, nor was any time frame given for the extension of the new Operations Center management console to storage systems, or when or if Sun's virtualization vision will extend to incorporate traditional storage subsystems.

At this point, storage analysts aren't keen to wade into the he-said/she-said fray. "All I know is, this is bad for the user at the end of the day; just because it puts so much FUD into the market," said Taneja Group founder and consulting analyst Arun Taneja.

An ongoing trend of IP disputes

Patent litigation and disputes over intellectual property have been hounding the storage industry of late. While the trend toward open source creates strife in one corner of the market, the rise of new technologies and the proliferation of successful newcomers, such as Riverbed Technology Inc., is causing a power struggle between new companies and the old guard. Hence the lawsuit brought recently by Quantum Corp., alleging that Riverbed's data reduction technologies violate data deduplication patents held by Quantum subsidiary Rocksoft Ltd.

During Riverbed's earnings conference call Tuesday, CEO Jerry Kennelly called the suit "meritless" and he expects to win if it goes to court.

"We do not infringe their patents, and we tried to tell them that for eight months," Kennelly said. "We tend to be kind of polite, nice people, and they may have mistaken our niceness for weakness. I don't know, but we expect to prevail on this and to just go on."

In the last month, it has also come to light that the U.S. International Trade Commission (ITC) is investigating whether Seagate Technology LLC, Western Digital Corp., Toshiba America Information Systems Inc., Hewlett-Packard Co. (HP) and Dell Inc. violated patents involving a method of bonding electrical components within disk drives.

Finally, also this week, flash-stick maker SanDisk Corp. announced that it is suing 25 other companies, essentially every competitor in the memory market, for violations of its patents.

Experts warn that if patent litigation continues to be popular, it will ultimately present a drag on innovation and raise the cost of doing business, with increased costs being passed on to the customer.


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