Original URL: http://www.theregister.co.uk/2008/10/27/netapp_wants_to_hurry_sun_case/

NetApp ready to rumble in Sun IP case

Hey, who took my WAFL?

By Chris Mellor

Posted in Storage, 27th October 2008 11:04 GMT

NetApp co-founder Dave Hitz has challenged Sun to come to court now and get the ZFS-WAFL IP case sorted as fast as possible.

NetApp is suing Sun for giving away what it claims is its intellectual property in the open source Zettabyte File System (ZFS). It contends that Sun includes IP from NetApp's Write Anywhere File Layout (WAFL) technology in ZFS. Sun disagrees and is counter-suing NetApp. The case is due to be tried in a northern Californian court once pre-trial activities are over.

In these Sun has assaulted the validity of NetApp patents, referring to prior art - relevant technologies pre-dating the NetApp patents - and trying to get the US Patent Office to re-examine them and, hopefully, strike them down. It has had some success here and Sun general counsel Mike Dillon has blogged about this, indicating that Sun's case is on a winning streak.

Now Dave Hitz, the holder of some of the disputed patents has blogged back suggesting that Sun is slowing things down by seeking a 'stay' in the hearing, as the Patent Office has rejected three of NetApp's patents on a preliminary basis, because it simply does not want the case to come to court. Why else should it want to delay the trial hearing?

Hitz blogs: "To me, the best indicator of strength is to look at which party wants to get on with the case (the one with a strong position), and which party consistently drags its feet and tries to delay (the one with the weak position)... If you were Sun, and if you were confident in your 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, and you had no confidence in your patents, wouldn’t you try to slow things down to maintain the cloud of doubt as long as possible? "

This looks true in the common sense. Not being a US patent trial lawyer though means that it is simply not known if common sense applies here, law and common sense often being polar opposites.

At least Hitz can claim a hit in the Sun-NetApp blog wars and maybe deliver some discombobulation to Dillon. ®