It seems to me that Net App stands to lose the most if the verdict goes against them. If Sun loses ZFS, then it can easily dip into its cash and get back to work on its other clever ideas. Maybe it can push its new parallel Lucene file system instead? But if Net App loses this case, then it's "so long and thanks for all the fish". If I were cynical I would think that Sun almost wanted Net App to initiate this action so that it could fire a salvo of patent claims against it and appear to be the victim at the same time. For Sun it's all win-win.

Your metric for your public relations score board is flawed.

It has been my observation that Schwartz's blog team censors their blog far more than Hitz's.

Many posts about the similarities with Azul on Schwartz's blog never made it to public view. If there's any case to compare this with, that's the one, and Sun's behavior in that case clearly demonstrates that they routinely engage in trollish behaviour with smaller competitors.

I'm also puzzled that you believe Schwartz is some rhetorical genius... he can't even spell "NetApp" without looking retarded.

Expensive yes, but it's not my paycheck that pays for it.

ZFS is sweet, but awfully new. Netapp is tried and true. It works

and it's fast as all get out. I'm not scared to say I'm a die hard Netapp fan. But I'm a Sun junkie too. Sun's NAS try years ago was sad. Maybe with ZFS and Solaris 10 it could be better, but it sucked wind.

I think it would be a sad day on the Internet for a staple like Netapp to go th e way of the doo-doo bird. Perhaps Sun and Netapp can mend ways and pair up like Sun did with StorageTek.

Talk about a scary merger. I think in the end for Sun's customers, it payed off bigtime. Go Sun, Go!

I know that SUN think the OSS crowd is a herd they can push and pull around, but believe me, I know a few Linux developers, and they have not forgotten SUN's broken promises and the long and bitter battles of Solaris against Linux, and they do not appreciate Schwartz trying to paint himself as some OSS protector and guardian. Geeks have long memories and a few trendy blogs aren't going to erase them. SUN has never open-sourced anything unless it was a matter of their own survival. Did SUN only open-source ZFS because it saw the NetApp suit coming?

Ever heard of cognitive dissonance? Must be hard on you

"NetApp" / "Netapps" / "NetApps" is used interchangeably with "Netapp" by the company employees. Perhaps by your definition, they are all "retarded" too?

If for the sake of argument, your citing of Azul is valid how does this show a routine behaviour?

One instance does not a habit make.

What evidence do you have for the claim that Schwartz's blog containing comments on the Azul situation? Again, if your comment wasn't acceptable or indeed relevant to be included, how does this show that "many" posts weren't accepted?

You really should cite references or proof if you're going to make wild claims like these.

"As Hitz rightly argues, there's no reason to give Sun any credit for citing that ZFS has been open sourced if Sun is in fact stealing NetApps' intellectual property."

As this is about patent infringement (both products use similar solutions to similar problems), not copyright infringement (both products are the same with one author and one copier) , the above phrase is quite misleading. The most that can be said is that if Sun got NetApp's patent from the USPTO, then proceeded to build their solution from that patent (or even proceeded to build their solution unaware of the existence of any prior patent), they may incite others covered by US patent law to do patent infringement if they distribute their solution to all and sundry. Guess you can also distribute potentially patent-infringing code until the judge has said not to.

"But if Net App loses this case, then it's 'so long and thanks for all the fish'"

That's a lot of baloney. If NetApp loses then things remain the same - they keep on selling their equipment and Sun keeps on selling theirs.

"If Sun loses ZFS, then it can easily dip into its cash and get back to work on its other clever ideas."

"For Sun it's all win-win."

You're daft. If Sun loses then it will have to license the patents from NetApp, assuming NetApp would be willing to do that. If not, then Sun has lots of file system work to do. Creating a file system driver is not something that can be done overnight. It usually takes years to get a reliable file system driver. Just look at how long it's taking Apple to get a reliable read/write ZFS driver on OS X --- and they're starting with one!

@dave said:

"Ever heard of cognitive dissonance? Must be hard on you"

Care to elaborate on that? Please tell me how the run up to this case was any different than Sun's trolling of Azul. I'm getting a little sick and tired of you Sun cheerleaders making lame pejoratives without the facts to back it up, so please, at a minimum use complete sentences when trying to flame and tell us exactly why it's so utterly and completely different than the Azul take down?

@Andrew:

As for Sun's censorship of Azul comments on Schwartz's blog, I've made quite a few postings personally and only the ones contrasting and comparing the Azul case didn't make it through. hmmm... makes you wonder.

Proof enough? Perhaps you should go try yourself. You'll notice that postings to Dave's blog go through without delay, and postings to Sun's are "moderated" by Marketing Trolls[1]

Also, I've never seen a NetApp employee butcher their own name in writing, but it's certainly possible.

Do you have any evidence of them doing so ? ;-)

I personally don't think we'd be here today if Sun wasn't demanding $36Million in a supposed "cross-licensing" deal.

[1] It's conjecture on my part that the blog censors in question are actually marketing "people." They could be lawyers; or the site might have a bug that black holes anything with "Azul" in the message. Stranger things have happened. Perhaps Dave's site is faster due to the superior storage backend ;-)

just two children throwing tantrums.

Why not do the right thing for your shareholders and customers, get in a room and sort it out. If you can't do that then keep it for the courts.

Looking at their financials, I would have thought that at least one of these two has better things to do.

Blogs are for real actually held opinions which is not what this is about at all companies have been engaging in this hearts and minds campaign approach in the dead tree space for a very long time. There is no difference between this and some damage control on an oped page of a major newspaper. However either way it's mostly bogus you will notice that neither side makes any legally damaging statements that would be almost impossible if this weren't carefully controlled hype. Do the lawyers cringe no they had to approve every line.

You can't steal "intellectual property", because there is no such thing. There is *no* right to own an idea.

What you can do is infringe upon someone's patent (a bogus monopoly wrongly granted by the State).

"There is *no* right to own an idea."

In the U.S., where both of these companies are headquartered, there IS indeed such a right. Article 1, Section 8 of the U.S. Constitution states that Congress shall have the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

http://www.law.cornell.edu/constitution/constitution.articlei.html#section8

To suggest that a patent is "a bogus monopoly wrongly granted by the State" is to fundamentally misunderstand the reason patents exist.

Prior to the creation of patent licensing, anyone who came up with a new design from which they wished to profit had only one option: to keep it secret. If it became publicly known then the inventor's competitors could make use of it and profit (at little cost) from the (often long and expensive) work put in by the original inventor.

Trade secrets like that, however, tend to prevent innovation. In almost all cases, once someone has come up with a new design, others soon see how to improve on it. That is how the technological and industrial world makes progress, not by locking away new ideas as "top secret".

The idea behind a patent is that it is a bargain. In return for a limited period of protection from copying, during which time the original inventor can use and/or license the idea and hence profit from his/her own work, (s)he *MUST* publish it, so that others can see how to improve on it.

I'm not saying that this system is not abused, by people who trade on the patent office's inability to understand the complex details of modern technology, but the basic concept was, and is, sound.

Swashbuckler: note that it only allows Congress to do that, it doesn't require it.

Matt Bryant: aside from anything else, you underestimate the power of Sun fanboys. There's not many of them, but they're loud.

Anyway, I think part of the problem is that the NetApp blog really is the personal blog of its Executive Vice President - it doesn't go through the PR department, doesn't require comments to got through moderation, and he doesn't remove inconvenient and embarrasing comments from it like the Sun blog does. (For example, any comment pointing out the comparison between the fact that one of the main developers of ZFS used to work in the NetApp filesystem division and the fact that Sun squashed the last small, innovative company to do anything vaguely like this - Azul - never shows up.)

It's easy to make sure the comments on your blog are all positive if you enable moderation and make sure that nothing too negative gets through. Sun don't deserve any credit for the fact that most of the comments on their blog post are positive - Dave deserves credit for allowing negative comments. Of course, most people seem to be falling for it.

Dave also seems to state his honest opinion and have a good grasp on how patent lawsuits actually work in the computer industry, unlike the bluster and propaganda on the Sun blog. Unfortunately, this puts him at an additional disadvantage above and beyond Sun's ability to invoke the hallowed name of Open Source.

Excuse me.... Isn't Azul Systems still around? I do believe they just received an additional round of funding; did they not?

Now, without having the time or the desire to dull my mind, I haven't read the pertinent patents. But, there really are only so many ways to do something. If those methods are patented and they are correspondingly trivial (by USPO standards) then the patents should have never been issued and should be revoked. This is true for any company and any patent. Putting together common sense items and calling it a new innovation and filing for a patent does not a strong patent make.

Journaling file systems would fail a solid review due to their basis on prior technology.

Copy-on-Write doesn't seem innovative to me. It may have been an unique idea to move it to a file system at the time. But, it sounds more like a natural and common sense progression than any true new invention.

So, Anonymous Coward, what exactly is so innovative about the NetApp patents?

I have a gut feeling that all of the "innovation" was borrowed from other realms of the IT sector. Copy-on-Write does truly sound like something that came from the mainframe world. Perhaps we should ask some mainframe folk if they know of anything using this concept outside of NetApp? If this is the core of NetApp's patents that they are claiming infringement on then I have to take a guess that NetApp will settle out of court after making a big scene. After all, storage is ALL NetApp does. I think the ZFS scares NetApp not so much because of possible patent violations but because of the price/performance proposition. After all, from the numbers I have seen, it does appear that ZFS running on a sufficiently quick processor does provide a much better price/performance value.

"Swashbuckler: note that it only allows Congress to do that, it doesn't require it."

Technically true, but get real - the FFs put it in the *** Constitution *** as a SUGGESTION?

And suggestion or not, it is still a right in the U.S.

"Copy-on-Write doesn't seem innovative to me."

Many things don't seem innovative AFTER THE FACT.

I once came up with a technique for doing something. Made the little company I worked for at the time a lot of money. It was very simple. I could have explained to anyone "skilled in the art" the basics of how to do it in literally one minute. Said person would have slapped their forehead and said "DOH! Of course!" BUT... no one had done it before and even after we had done it, people to had to reverse engineer it to figure it out how it was done.

Going from the end of the maze to the beginning is usually much easier than going from the beginning to the end...

@Ysean,

"So, Anonymous Coward, what exactly is so innovative about the NetApp patents?"

http://www.ieee.org/portal/pages/about/awards/bios/2007_Bios/2007JohnsonInfo-HitzLau.html

:-)

I'd also suggest digging through some old NetBSD code... you'll find Mr. Hitz's name sprinkled about. He was doing Open Source before it was "cool".

Sun has consistently failed with with software revenue models.

They've given up with selling software, but thankfully they can hide this failure behind the mantel of Open Source.

Hence, they want to break the software revenue model for everyone.

Microsoft must really irk them.

Now, they are hoping that they can maintain a presence in commodity hardware and expensive services.

Sun is still trying to find an identity.

@Max

A marketing blurp regarding an award, especially one as vague as that one, doesn't mean much. One of the founders also having donated time/code to FreeBSD also has NOTHING to do with this discussion nor my question.

@Swashbuckler

So, you're saying that even if they took the technology/concept from another environment (say mainframes or databases for the sake of discussion) then they still deserve a patent because they were the first to think of using it in a file system? Honestly, that concept to me is about at sane as Charles Manson. Honestly, the concept of copy-on-write wasn't even innovative back in 92 when the company was founded. The more I think about the actual concept it seems VERY similar if no the same as a basic concept taught in my high school's programming courses. I just don't think it deserves a patent.

In hindsight I think I am starting to lean more and more toward the anti-software patent group these days. It is becoming idiotic. Let's patent everything so no one can compete. Besides, when was the technology first patented and then brought to market? 10-15 years?

"So, you're saying that even if they took the technology/concept from another environment (say mainframes or databases for the sake of discussion) then they still deserve a patent because they were the first to think of using it in a file system?"

If it's non-obvious, then yes - that's the law.

"Honestly, that concept to me is about at sane as Charles Manson."

Well, we haven't established YOUR sanity yet, now have we.

"The more I think about the actual concept it seems VERY similar if no the same as a basic concept taught in my high school's programming courses."

It may BE similar, that doesn't mean it's not patentable under current U.S. law.

"Besides, when was the technology first patented and then brought to market? 10-15 years?"

You're daft (you watch Faux News much? They use that same tactic).

NetApp filed for the earliest patent that Sun claims has "spurious claims" on May 31, '95. The WayBack Machine shows data from the NetApp web site talking about WAFL and stuff related to that patent in Dec, '97 (http://web.archive.org/web/19980201130313/http://www.netapp.com/technology/level3/3002.html#I36).

"A marketing blurp regarding an award, especially one as vague as that one, doesn't mean much. One of the founders also having donated time/code to FreeBSD also has NOTHING to do with this discussion nor my question."

It's not a marketing blurb from NetApp, it's an IEEE press release. If the IEEE thinks your work is "innovative", that speaks volumes even if you consider it "vague" (even though it mentions WAFL *explicitly*).

bleedin ell guys...

MAX: you are hugely biased to NetApps, and will never see any good in anyone else.

Anyone else: Ranting on here isn't going to solve anything.

stop flaming each other, and talk nicely. This is about NetApps and Sun, and not about us ranting at each other (unless you also want to sue each other).

Basically one may win, one may lose or they might both nip out to a pub, have a drink and spend the rest of the evening laughing about how silly it was arguing in the first place..

It doesn't really matter because no-matter how passionate you get here, your miniscule views won't be used in the courts!

Be happy, play nicely.