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Come clean, NetApp

Put up or shut up

Despite Oracle and NetApp dismissing their ZFS-based or related lawsuits against one another, NetApp is refusing to withdraw its threatening letter to Coraid and stop threatening "all appropriate remedies for any infringement" of NetApp's patents.

Aked about the status of the Coraid letter following the Oracle-NetApp law suits dismissal a NetApp spokesperson said: "NetApp values its intellectual property, and as has always been our posture, stands ready to vigorously defend our IP. From that perspective, nothing has changed."

It won't wash as they say. NetApp and Oracle were involved in a legal dispute with each other in which NetApp claimed that Oracle's ZFS technology infringed WAFL patents and Oracle (Sun as was) claimed those WAFL patents were invalid. During this dispute NetApp's lawyers wrote to Coraid. The letter from Weil, Gotshal & Manges LLP on May 26, 2010, said: "As you must know, NetApp maintains that ZFS-based products infringe over a dozen of its patents in Federal District Court in the Northern District of California in suits with Sun Microsystems (Case Nos.....). NetApp's patents in this litigation cover a host of features, including unified storage, among others. Coraid must cease infringement of NetApp's patents..."

The court cases referred to are being dismissed. Since NetApp is now no longer in dispute with Oracle over Oracle's use of technology in ZFS that NetApp originally claimed infringed its patents and now no longer does, then NetApp can not logically claim that businesses that use Oracle's ZFS technology are infringing its patents.

If Oracle's ZFS is infringing NetApp's patents, therefore, by extension, so too are GreenBytes and Nexenta with their ZFS-based products, and so are Nexenta customers Coraid and Compellent.

If Oracle is not infringing NetApp's patents with regard to its ZFS technology then, by extension, neither are GreenBytes, Nexenta, Coraid and Compellent.

Why won't NetApp say which is the case? What would a lawyer who was defending Coraid against a NetApp patent infringement suit based on ZFS infringing NetApp patents say and be able to successfully argue?

Perhaps there is a third alternative in that Oracle has licensed NetApp technology or NetApp has licensed Oracle technology. In the former case then Oracle's customers surely inherit, as it were, Oracle's license since they obtained their ZFS technology on an open source basis from Oracle.

If NetApp is licensing Oracle technology then it cannot, surely, have a hope in hell of suing Oracle' open source customers using the ZFS technology which it has licensed from Oracle unless the terms of its license from Oracle say it has rights over the distribution of ZFS previously owned, as it were, by Sun.

Come on NetApp: are you continuing to threaten Coraid while settling with Oracle over the same technology infringement issue? Are you or Oracle licensing ZFS-related technology from each other? If you won't pursue Oracle through the courts for infringing your patents then you can't logically pursue Coraid through the courts on the same issue when it is Oracle's customer. Where is the principle in that?

Come on NetApp, come clean on this issue and tell everyone the score. ®

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