Thursday, October 25, 2007

Open-Source Software, Spurious Patents & Trolls : Sun Microsystems CEO and President Jonathan Schwartz Talks about Patents and Infringement Litigation

The Chief Executive Officer and President of Sun Microsystems, Inc., Johnathan Schwartz, maintains a blog, Jonathan's Blog, at Sun Blogs.

In his latest and most recent October 24, 2007 posting, ZFS Puts Net App Viability at Risk?, Schwartz talks about patents and litigation, especially the patent infringement suit by Network Appliance (NetApp or NetApps) against Sun Microsystems which was at that time (September 5, 2007) reported by Elise Ackerman of the Mercury News as follows (excerpt):

"Network Appliance, the Sunnyvale maker of computer storage systems, is suing Sun Microsystems for allegedly infringing on seven patents and releasing them under an open-source license.

Experts in patent law say the suit, filed this morning in U.S. District Court in Lufkin, Texas, could become a test case of how to treat open-source software that improperly includes patented technology."

As written back in September at the Stanford Law School (SLS) News Center:

"Professor Mark Lemley commented in the San Jose Mercury News about a recently-filed lawsuit dealing with open source and fair use issues:

"This is something people feared for a long time was coming," said Mark A. Lemley, a law professor at Stanford University." [Link in text added by LawPundit]

After responding to that NetApps suit initially in his blog on September 6 (via Scobleizer), Schwartz now indicates in his October 24 posting that Sun, clearly angered by what they view to be totally unnecessary patent litigation brought against them, will go after NetApps with a vengeance for having brought the suit in the first place and against Sun's sober advice:

"... we have no interest whatever in suing NetApps - we didn't before this case, and we don't now. But given the impracticality of what they're seeking as resolution, to take back an innovation that helps their customers as much as ours, we have no choice but to respond in court.

So later this week, we're going to use our defensive portfolio to respond to Network Appliance, filing a comprehensive reciprocal suit. 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. By opting to litigate vs. innovate, they are disrupting their customers and employees across the world.

In addition to seeking the removal of their products from the marketplace, we will be going after sizable monetary damages. And I am committing that Sun will donate half of those proceeds to the leading institutions promoting free software and patent reform (in specific, The Software Freedom Law Center and the Peer to Patent initiative), and to the legal defense of free software innovators. We will continue to fund the aggressive reexamination of spurious patents used against the community (which we've been doing behind the scenes on behalf of several open source innovators). Whatever's left over will fuel a venture fund fostering innovation in the free software community."

Obviously, we are firmly on the side of Sun Microsystems and hope that NetApps for their greedy actions will be rewarded down the road with oblivion, which they deserve.

Well done, Jonathan Schwartz and Sun Microsystems, and thank you for support of open-source software and sensible patent reform and for opposition against patent trolls and spurious patents.

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