Thursday, December 20, 2007

Open Source Related Patent Litigation Update on Network Appliance/Sun Lawsuit from Dana Lengkeek

Dana Lengkeek of Corporate Communications at Sun Microsystems, Inc., has sent us the following year-end "Update on Network Appliance/Sun Lawsuit" (Monday, December 17, 2007 4:16:26 PM) [published here with her permission]:

Hello -

Moving into the end of the year I wanted to provide an overview of where
we are with the Network Appliance lawsuit. Following is the current status of activity, please let me know if you have any questions.

Dana Lengkeek

Corporate Communications
Sun Microsystems, Inc.
Phone: 650 786 4017
Mobile: 415 994 4008
Email: Dana.Lengkeek@Sun.COM

------------


As of Friday, December 14, Sun has filed reexamination requests for
three Network Appliance patents as part of its response to a lawsuit initially filed by Network Appliance against Sun on September 5, 2007. This follows the agreement last month with Network Appliance to transfer
Network Appliance's lawsuit from Texas and litigate it along with the case Sun filed in California. The motion to transfer was filed on November 21 and the cases are now assigned to a mutually agreed upon judge. With each company being headquartered in northern California and the majority of inventors and innovation in dispute originating in California, it makes sense for this case to be litigated in this jurisdiction. We are pleased that Network Appliance agreed to Sun's
request and retracted its imprudent choice of venue for this litigation.

Reexams have been filed on the NetApp WAFL patents that purportedly
cover concepts such as copy on write, snapshot and writable snapshot. There is a significant amount of prior art describing this technology that was not in front of the US patent office when it first examined
these patents. In just one example, the early innovation by Mendel Rosenblum and John Ousterhout on Log Structured File Systems, applauded in a NetApp blog
http://blogs.netapp.com/dave/2007/09/vmwares-founder.html as being inspirational to the founders, was not considered by the patent office in the examination of the NetApp patents.

Sun is committed to protecting innovation and the open source community
against this attack. The reexamination of three Network Appliance patents seeks to ensure the open source community continues to have access to technology that Network Appliance did not invent. Sun is also in the process of identifying other Network Appliance patents to be reexamined. We continue to receive support from the open source community in terms of prior art and appreciate the community response to protect innovation. We would like to thank those who have sent in relevant art that has been used in connection with the reexamination requests.

Sun's actions are in response to the suit Network Appliance brought
against the company to forestall competition from the free ZFS technology. Sun's earlier filings include patent counterclaims against the entirety of Network Appliance's product line, including the entire NetApp Enterprise Fabric Attached Storage (FAS) products, V-series products using Data ONTAP software, and NearStore products, seeking both injunction and monetary damages.

Sun is confident in our patents and claims against Network Appliance,
and pleased with the direction of our case. To view more information, including the filings, visit Sun's Open Source Community Support page at www.sun.com/lawsuit/zfs."

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