Play nice!

The latest in Sun vs. NetApp is that the last of the three patents at the core of NetApp’s case is close to being tossed out by the USPTO. The other two have already been invalidated and withdrawn from the litigation.

A quick refresher: following the release of ZFS, NetApp sued Sun, claiming that ZFS infringed on six NetApp patents, including the three mentioned above; Sun retaliated by claiming that NetApp had somehow forfeited their right to implement NFS, and requesting a permanent injunction against further sales of NetApp products.

This latest development is good news to anyone who is opposed to software patents, and / or in favor of reforming the utterly broken US patent system. However, I must respectfully disagree with Groklaw’s take on the case.

This is not and has never been about closed source suing open source. It is about one commercial entity suing another commercial entity for releasing a product that infringes on the first entity’s patents.

NetApp’s friendly relationship with the open source community is a matter of record: their products are based on FreeBSD (with their own file system and NFS implementation on top), and they’ve donated equipment to the FreeBSD project.

Obversely, Sun’s stance on open source is somewhat ambiguous: on the one hand, they’ve contributed greatly to the open source community through OpenOffice and Java, but on the other, they intentionally released ZFS under a GPL-incompatible license.

I believe Sun and NetApp are equally to blame: yes, it was stupid of NetApp to hit Sun over the head with their [apparently invalid] patents, but it was equally stupid of Sun to play the NFS card against NetApp, especially since it appears that they could have fought and won the case on the patents alone.

Frankly, the idea that Sun think they can unilaterally decide who may or may not implement NFS scares me, as it should anyone who uses a third-party NFS implementation—or is a contributor, as I am, to an open source operating system that ships with an NFS implementation.

All that being said, Sun and NetApp alike should have known better than to embark on this little adventure; they should have remembered the old adage about competing in the marketplace, not in the courtroom.

4 thoughts on “Play nice!

  1. Jonathan Schwartz wrote the following in his blog almost a year ago:

    As a part of this suit, 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.

    Apparently, they didn’t follow up on the second part, but I’m still very uncomfortable that they even mentioned it. That’s not an OSS-friendly move.

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