Oh dear, it is such a pity. Two eminently respected storage companies have fallen out and one is taking the other to court.

Unlike the SCO-vs-IBM and SCO-vs-Novell case this isn't an example of a fading company trying to save its business though legal moves. Nor is it a case of a bullied company snapping back. No, this is a regrettable case, one that shouldn't be coming to court at all but is, and it's all because of patent breach-chasing lawyers.

Like ambulance chasers, the patent breach lawyers will win in a fees-sense whatever the outcome of the cases they instigate.

How has it come to this, to NetApp taking Sun to court?


Towards the end of 2004, StorageTek lawyers said NetApp had infringed three StorageTek patents concerning disk virtualisation and requested royalty payments from it, in the millions of dollars area. NetApp looked into this and said two things: no, it hadn't infringed the alleged patents; and the patents weren't valid anyway.

When Sun bought StorageTek in Autumn, 2005, it took over these discussions and resumed the claims against NetApp in January, 2006. The discussions got nowhere with neither side abandoning claims throughout 2006 and 2007 to the present time.

Over this period, and prompted by the StorageTek and then Sun's patent-breach chasing lawyers, NetApp began examining Sun's own software products for use of NetApp patented technology. Lo and behold; it found seven examples concerning WAFL, its Write Anywhere File Layout, in Sun's ZFS (Zettabyte File System).

Concerning one example, the claim states: "The architects of ZFS have described it as follows: The best way to avoid file system corruption due to system panic or power loss is to keep the data on the disk self-consistent at all times, as WAFL does. To do so, the file system needs a simple way to transition from one consistent on-disk state to another without any window of time when the system could crash and leave the on-disk data in an inconsistent state."

It suggests that: "As an exercise, one might compare the ZFS "uberblock" and its role in file system consistency as describe ... with the role of the "root node" and "file information structure" described in (NetApp's WAFL patent)."

As if that was not enough, the stakes are raised higher by Sun distributing an open source version of ZFS, in effect, giving away NetApp code for free. NetApp has disowned any interest in stopping individuals using the code privately or its use in research, but commercial businesses may be using the code in products and or services for revenue purposes and that could be stopped if NetApp's suit is granted by the court.

So NetApp informed Sun of the alleged infringements and requested it stop infringing NetApp patents. Sun effectively demurred, but didn't withdraw its original allegations, and time passed - and passed - and NetApp decided to bring things to a head.

Why didn't Sun CEO Jonathan Schwartz and NetApp CEO Dan Warmenhoven sit down and talk this though, with Dave Hitz, the writer of the patented NetApp code at issue, present?

The two company's linen may be clean but washing it in public court will make it, and them, look grubby.

What does NetApp want?

Here's the section of the complaint saying what NetApp wants: "NetApp seeks damages for Sun's infringement and an injunction restraining Sun from continuing to use NetApp's patented inventions without permission."

NetApp wants Sun to stop distributing its code. It doesn't appear to be about NetApp wanting Sun to license its code so it can open source it. That would be a nonsense. Sun can't pay to license the code and then give it away. NetApp wants Sun to stop open sourcing ZFS or to re-write fundamental portions of its code or to gain permission from NetApp.

What would be involved in gaining permission is not spelled out but it does present an opening to Sun for discussion about moving forward. A trial by jury, as NetApp is requesting, is really not in either company's best interests is it? Surely not.

Could NetApp be persuaded to Open Source the code at issue?

Throughout the claim we see evidence that StorageTek, but mostly Sun, has not taken NetApp's rebuttal of its claims seriously. For eighteen months this issue has been rumbling on and now, like Mount St Helen's explosion, the lid has been blown off and a continuing eruption is threatened.

I personally believe it is in the interests of the storage supply and using community that the case does not come to court and should be resolved as soon as possible. What could Sun offer to help persuade NetApp to withdraw its case? Some things are obvious, some are not.

First it should immediately grant that NetApp is right to say it does not violate the Sun patents at issue concerning disk virtualisation. That is the obvious thing.

Allied with this it should immediately cover NetApp's legal costs in the case: another obvious thing.

Second, it should explore the possibility, with NetApp, of how the patented code at issue might conceivably be open sourced without harming, financially harming, NetApp's business. The code genie here is out of the bottle. It can't be put back. Its release could, though, be legitimised.

Dave Hitz, a NetApp VP and co-founder and the writer of the patented WAFL code at issue, says in his blog: " It is admirable to contribute to open source. I have done it personally, although it was a long time ago that I was writing code, and NetApp has also contributed as a company."

That's a positive statement. There is more: "It doesn’t help the open source movement to give away code that is encumbered with someone else’s patent rights. The sooner we determine the true status of ZFS, the better it will be for everyone. NetApp certainly doesn’t believe that we can somehow erase every copy of ZFS that has been downloaded. (Impossible!)

This lawsuit isn’t about downloads for personal or non-commercial use; it is about what Sun is doing."

He says that NetApp doesn't view itself as being at war with Sun. Sun CEO Warmenhoven has called Sun's conduct 'reckless' so there will need to be a fair amount of Sun eating of humble pie, to mend relations at this level. What appears to be the case is that there isn't a relationship at CEO level though. Unless the two companies continue to fight through legal proxies there will have to be one, and establishing it has to get over this 'reckless' hurdle.

It must be a first, this use of blogs for CxO-level messaging. Schwartz has used his blog as a high-level communications tool and Dave Hitz is a steady blogger too. We can't expect Hitz to comment again about this in his blog; that might compromise the legal case. We can't expect Schwartz to comment about it in his blog, other than perhaps acknowledging its existence.

What we can hope for, and should expect in my personal view, is that two honourable, respected and admired companies will sit down face-to-face at the highest level and arrive at a satisfactory and mutually-beneficial conclusion. Come on guys, do the right thing. It's in all our best interests.