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Sun Countersues NetApp in Patent Brouhaha

The battle over Sun's ZFS file system technology is heating up with more lawsuits. In response to a patent infringement claim by Network Appliance, Sun announced today it filed a counterclaim that seeks a permanent injunction against Network Appliance's product line, as well as monetary damages.

In a blog posting, Sun CEO Jonathan Schwartz said he "reached out" to NetApp CEO Dan Warmenhoven to try and avoid litigation, but couldn't reach an agreement. Schwartz said NetApp's insistence that ZFS be retracted from the free software community and conditions that Sun only limit its use to computers, not storage devices, were unacceptable.

In his own blog posting, NetApp founder and executive vice president David Hitz said Sun's actions against his company's product line are "the sort of broad but vague threat that gets people so frustrated with patent litigation."

He later said he was "disappointed" in Schwartz for "not doing better." NetApps is making a claim on elements of Sun's NFS, which Sun has been making available for free under an open source license.

"One of the most important rules of open source is that you must only give away things that belong to you. If protected information does leak into open source, it will probably live forever in the Web, but that isn't the issue. To me, the issue is that large corporations should stop making a profit on protected information that doesn't belong to them. That's what we're asking here."

The original NetApp suit, filed in September in the U.S. District Court for Eastern Texas, claims Sun's ZFS file system technology infringes on seven NetApp patents. The dispute affects NetApp's WAFL file system and RAID  technologies.

Schwartz's blog posting notes that Sun indemnifies its customers against claims such as NetApps relating to what Sun considers its intellectual property. He said "customers can continue to use ZFS without concern for spurious patent and copyright issues." One of those customers turns out to be Apple.

Schwartz noted Apple plans to use ZFS in "Leopard," the next version of the Macintosh operating system set for availability starting tomorrow evening.

In a bid to position Sun as a defender of software innovation, Schwartz also stated he's committed to donating half of whatever monetary damages Sun gets, should its case be successful, to institutions he said promote free software and patent reform, including the Software Freedom Law Center and the Peer to Patent initiative.

Hitz criticized Schwartz's statement that "you cannot unfree what is free" as setting a dangerous precedent. "It says that you can steal anything, as long as you open source it afterwards. That can't be right."

In a separate blog posting, Sun's general counsel Mike Dillon questioned why NetApp has waited so long to make a claim. He said ZFS was announced over three years ago and has been in the open source community since November, 2005.