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Sun To Seek Injunction, Damages Against NetApp

kdawson posted more than 6 years ago | from the file-systems-want-to-be-free dept.

Patents 183

Zeddicus_Z writes to note that Sun CEO Jonathan Schwartz has outlined Sun's response to Network Appliance's recent patent infringement lawsuit over ZFS: "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. In addition... 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... [Regarding NetApp's demands in order to drop its existing case against Sun:] ...[to] unfree ZFS, to retract it from the free software community, and to limit ZFS's allowable field of use to computers — and to forbid its use in storage devices."

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old news. (0, Informative)

Anonymous Coward | more than 6 years ago | (#21252729)

Old news.

Re:old news. (1)

mrbluze (1034940) | more than 6 years ago | (#21252737)

Old news.
Maybe, but still worth discussing. What are the implications for everyone?

Re:old news. (5, Insightful)

rucs_hack (784150) | more than 6 years ago | (#21252859)

For me, quite a lot. I'm wanting to start up a software house some time in the next year. These patent wars frankly wory me. I don't know if I'd be that keen on entering the US market, since some shark will no doubt try to take a bite if my product is seen to be making money. Better to work in Europe and the far east methinks.

Yeah, software piracy is a tad rife there, but I'd rather be strategising against pirates (services instead of software payment etc), than have my company gutted because of some shitbar patent suit in texas.

Re:old news. (5, Interesting)

Tony Hoyle (11698) | more than 6 years ago | (#21252999)

Don't have any development in the US, so if someone goes after you it only affects distribution not development, don't ever incorporate in the US (makes it harder for them to go after you), and make sure you don't look too hard at existing patents (it's triple damages if you knowingly infringe a patent.. since its damned near impossible not to infringe a software patent with any sizable code it's far better if you're ignorant of which ones.. and yes a lawyer was the first one who advised us about that).

We have a sales team in the US but there's no legal company there, to protect ourselves.

Re:old news. (1)

rucs_hack (784150) | more than 6 years ago | (#21253111)

interesting information, thanks, I shall make a note of it.

Re:old news. (0)

Anonymous Coward | more than 6 years ago | (#21253525)

Wow, you're doing business is the US with no legal affiliation with the local or federal govt?

You must have some fucking terrible lawyers.

Re:old news. (3, Funny)

swillden (191260) | more than 6 years ago | (#21253881)

Wow, you're doing business is the US with no legal affiliation with the local or federal govt?

You must have some fucking terrible lawyers.

Either that or your reading comprehension sucks.

Which is more likely?

No longer true (1, Insightful)

Anonymous Coward | more than 6 years ago | (#21253901)

What about SpamHause (wasn't it?) that didn't do ANYTHING in the US but were still found guilty in a US court.

Or Sylkarov, working in USSR for a USSR product THAT WASN'T BEING SOLD IN THE US (deliberately, they took steps not to). Still got banged up.

The past few years, if it's illegal in the US, it doesn't matter if you aren't in the US.

And, if you are found guilty, they can take you in if you fly over or stop to change craft in the US (as per UK betting mogul currently doing bird in the US).

Re:No longer true (1)

argiedot (1035754) | more than 6 years ago | (#21254621)

Re: Sklyarov
The charges were dropped. And the company he was working for was found to be not intentionally violating US law.

Re: SpamHaus
They chose to ignore the sentence, and I suppose the reason the case worked in favour of that spammer is because they chose not to defend themselves because US courts have no jurisdiction over them.

Still arrested (0)

Anonymous Coward | more than 6 years ago | (#21254729)

so what's the difference?

And SpamHause didn't turn up because the court HAD NO JURUSDICTION.

Re:old news. (1)

lottameez (816335) | more than 6 years ago | (#21253165)

Another approach is to deliver your software as a service. While you might run up against some silly patents (e.g. amazon's one-click), it would be a lot harder for people to recognize, much less prove, patent infringement in the heart of your server-side code.

Or so I'd think anyways.

Re:old news. (1)

Tim C (15259) | more than 6 years ago | (#21253633)

Better to work in Europe and the far east methinks.

Yeah, software piracy is a tad rife there


I don't think you'll find that software piracy (or any other kind) is any more rife in Europe than it is in the US. I don't suppose that was what you meant to say, but it certainly was what you actually said :)

Re:old news. (1)

rucs_hack (784150) | more than 6 years ago | (#21254725)

more the far east, but yes, europe. Europe isn't just france germany and england you know...

This is why we need to get rid of software patents (4, Insightful)

hairyfeet (841228) | more than 6 years ago | (#21252741)

Try to do something new,or innovative, and out come the lawsuits. Only the megacorps like Sun can really compete in the minefield that is software anymore. If we can get rid of the foolish software patents, and get copyright back into a reasonable time frame, maybe the US can get back to being an innovator, instead of merely a lawyers paradise.

This is why we need to KEEP software patents (5, Interesting)

cperciva (102828) | more than 6 years ago | (#21252851)

I disagree completely: This is why we need to keep software patents. NetApp did something innovative with WAFL; Sun then came along, reimplemented everything, and called it ZFS.

Remember, "innovation" means "doing something new" -- not "copying what someone else has done". There are certainly implementational issues with the patent system as it currently exists, but in principle the patent system is all about protecting people who do something new from corporations (like Sun or Microsoft) who just reimplement without adding anything new.

Re:This is why we need to KEEP software patents (2, Interesting)

Nomen Publicus (1150725) | more than 6 years ago | (#21252895)

Well, WAFL is closed source and ZFS is open. So someone has to explain exactly how Sun expected to get away with "copying". An added twist to the case will come when the native client/server CIFS support is shipped with Solaris (coming soon.)

Re:This is why we need to KEEP software patents (1)

cperciva (102828) | more than 6 years ago | (#21252921)

WAFL is closed source and ZFS is open. So someone has to explain exactly how Sun expected to get away with "copying".

The design of WAFL has been extensively published. I'm sure that ZFS doesn't have any code directly copied from WAFL; but the ideas do seem to be extensively copied.

Re:This is why we need to KEEP software patents (1)

makomk (752139) | more than 6 years ago | (#21252987)

Hell, if you know your filesystems I think you could figure out a lot of how it works from the NetApp patent application. (Knowledge of how to read patents is less important - it reuses existing terms and idea where appropriate and is, in general, alarmingly readable for a patent. I'm still wondering how this happened - it's almost like it was written by a filesystem designer rather than a patent lawyer, which is unlikely.)

Re:This is why we need to KEEP software patents (2, Interesting)

badfish99 (826052) | more than 6 years ago | (#21253035)

That's how patents are supposed to work: in return for the temporary protection of a patent, you have to reveal exactly how your invention works in the patent application, so that everyone can copy it once the patent has run out.

Re:This is why we need to KEEP software patents (4, Insightful)

mpe (36238) | more than 6 years ago | (#21253219)

That's how patents are supposed to work: in return for the temporary protection of a patent, you have to reveal exactly how your invention works in the patent application, so that everyone can copy it once the patent has run out.

Maybe patent applications should be examined by qualified people to see if they can be implimented using only the information supplied in the application together with that already in the public domain.

Re:This is why we need to KEEP software patents (4, Informative)

cperciva (102828) | more than 6 years ago | (#21253315)

Maybe patent applications should be examined by qualified people to see if they can be implimented using only the information supplied in the application together with that already in the public domain.

There's no maybe about this. As part of a patent application, "the specification must include a written description of the invention and of the manner and process of making and using it, and is required to be in such full, clear, concise, and exact terms as to enable any person skilled in the technological area to which the invention pertains, or with which it is most nearly connected, to make and use the same [uspto.gov] "; and patent examiners are responsible for determining if a patent application meets this requirement.

Most of the problems with the patent system right now can be traced to the fact that patent examiners neither have enough time nor the qualifications necessary to make such determinations -- the days when the likes of Einstein worked for the Patent Office are long past. However, this is a reason to recruit more and better patent examiners (and in particular more in the area of computing), not to throw out the entire system.

Re:This is why we need to KEEP software patents (3, Interesting)

Ash Vince (602485) | more than 6 years ago | (#21253549)

Most of the problems with the patent system right now can be traced to the fact that patent examiners neither have enough time nor the qualifications necessary to make such determinations -- the days when the likes of Einstein worked for the Patent Office are long past. However, this is a reason to recruit more and better patent examiners (and in particular more in the area of computing), not to throw out the entire system.
Now first let me make clear that I agree with the above statement and think that you have correctly identified the root of the problem.

The only problem I have is with your suggestion as to how to fix it. The patent office would need to be vastly increased in size in order to cope with having people with a higher degree of specialisation. This would also result in the patent office having to hire more expensive staff (better qualifications and specialised expertise is not cheap).

This would in turn put up the tax bill for the average american, and we know how much they love politicians suggesting higher taxes. The other issue is that this would negatively impact on patent lawyers earnings. The large patent law firms would therefore lobby very hard against such a move.

Re:This is why we need to KEEP software patents (0)

Anonymous Coward | more than 6 years ago | (#21254697)

It's bizarre that we can spend tons of money we don't have on wars and oversized offensive military capacity, but we can never spend money on anything that's actually useful. I honestly have no idea how that works in anyone's mind. Reforming the patent system would do more for the economy than any sort of tax cut that didn't come in terms of a complete simplification of corporate taxes, and maybe even then. Patents are arbitrary limited-term monopolies that result in numerous frivolous legal actions. And people bitch about ADA requirements. Sheesh.

Re:This is why we need to KEEP software patents (3, Interesting)

uncqual (836337) | more than 6 years ago | (#21254979)

This would in turn put up the tax bill for the average american
Or, raise patent fees - perhaps including a "time and materials" component which would vary depending on the skills and effort required by the patent office. Those patents that required an uberexaminer with doctorates in three seemingly unrelated fields and 20 years of commercial experience would be expensive - but that seems okay. It seems likely that some of the most novel patents (slapping head saying "dang, that's really clever and useful, why didn't I think of that?") actually would require the least effort/cost to grant -- and these are the sort of patents that seem to be the best for society as they reflect true innovation and insight.

Perhaps part (1/2?) of the fees above some limit could be paid on an installment basis over the life of the patent (possibly with interest) - and the patent holder could decide to stop making the payments and thereby irrevocably release the patent into the Public Domain. On the positive side, this would help the "little guy" a bit as some of the expenses could be deferred or, even never incurred. It would also open up patents more quickly to the Public Domain if the inventor ('s company) hadn't figured out how to commercially exploit the patent. Also, on the positive side it would tend to reduce, over time, the number of active patents and thereby reduce the search effort (for both the applicant and the patent office) and also remove some of the mines from the minefield that technology companies walk every day. On the negative side, some of the expenses of patent applications would eventually be borne by the taxpayer or by amortizing the ultimately unrecovered costs across other patent applications.

Re:This is why we need to KEEP software patents (2, Insightful)

Hatta (162192) | more than 6 years ago | (#21254049)

Most of the problems with the patent system right now can be traced to the fact that patent examiners neither have enough time nor the qualifications necessary to make such determinations

Solution, if you don't have the time to validate a patent, don't issue it. I'm sure if they stopped issuing 90% of patents, there would be a lot more attention focused on this problem.

Re:This is why we need to KEEP software patents (1)

makomk (752139) | more than 6 years ago | (#21254261)

In theory, perhaps. In practice, I think patents that are unreadable to anyone but patent lawyers are a long and well-respected tradition...

Re:This is why we need to KEEP software patents (1)

bill_of_wrongs (761897) | more than 6 years ago | (#21252911)

Nathan, is that you ?

Re:This is why we need to KEEP software patents (4, Insightful)

onion2k (203094) | more than 6 years ago | (#21252925)

What NetApp did was to patent a method of mapping data in a file system. What they should have been made to do by the USPTO was patent their implementation of a method of mapping data in a file system. It's a subtle but important difference.

To draw an analogy to something a little more obvious we should look to the drug industry. Many people believe that patenting drugs shouldn't be allowed, what should be allowed are patents on the method of making the drug. If someone can think of a way to get the same end result using a different process they should be allowed to do just that. Having a system that allows companies to hold patents on what amount of sequences of data is silly.

The same should go for software. It's fine to patent a specific implementation of some code, but it's not fine for that patent to cover every conceivable way of achieving the same end result.

Re:This is why we need to KEEP software patents (4, Interesting)

itsdapead (734413) | more than 6 years ago | (#21253005)

Many people believe that patenting drugs shouldn't be allowed, what should be allowed are patents on the method of making the drug.

In the case of the drugs industry (frequently raised as a pro-patent argument) - where you need mandatory regulation anyway to ensure drugs are safe and effective, surely it would be quite straightforward to grant a fixed-term exclusive license as part of the (expensive) approval process? No need to get bogged down with lawyers trying to decide who "owns" the underlying knowledge - you pay to get something licensed in a particular country, you get a N year monopoly.

Re:This is why we need to KEEP software patents (1)

Courageous (228506) | more than 6 years ago | (#21254537)

This is actually one of the best ideas I've heard in a long time.

C//

Re:This is why we need to KEEP software patents (4, Interesting)

Ginger Unicorn (952287) | more than 6 years ago | (#21253123)

The same should go for software. It's fine to patent a specific implementation of some code, but it's not fine for that patent to cover every conceivable way of achieving the same end result.

Surely what you're describing is copyright, not patenting. Being a granted a monopoly on a specific implementation is copyright. Regarding what you said about the drug industry - if your scheme was put in place, what would be the incentive to develop the drugs in the first place? If you come up with a cure for AIDS and start marketing it, then a month later someone comes up with a way to churn your pills out faster and cheaper, and there no possible way for you to do it more efficiently than them, they get to eat your lunch with impugnity, since you would be forbidden from emulating their process, and they arent forbidden from raping your hard earned R&D assets.

Re:This is why we need to KEEP software patents (2, Informative)

JasterBobaMereel (1102861) | more than 6 years ago | (#21253293)

This is what is wrong with the patent system in the US - In the UK (at the moment, mostly...) you cannot patent a thing only a process, so you cannot patent your product only your method of making it, in the same way you cannot patent a drug only your method of making that drug, you cannot patent a gene only your method of creating or isolating that gene, and if we had software patents (which we thankfully don't) you would only be able to patent the process of writing software not software itself (you could patent a RAD system now, but not the software that implements that process)

In the US the patent system is broken since it allows the patenting of things not methods, this really extends copywrite rather than being a separate process?

Patent your method
Copywrite your original idea
Trademark your logo/name

Re:This is why we need to KEEP software patents (5, Insightful)

ZorbaTHut (126196) | more than 6 years ago | (#21253299)

The problem is that "copyright" and the logical extension of "patenting" physical objects are the same thing.

You don't copyright a stove, because people can't just copy it. You patent it, and now people can't build an identical stove, even if they could build something very stovelike. But with software, you copyright the software, and now people can't copy it. Patenting would, in theory, fulfill the exact same purpose - "you can't build the identical software" - and that's software patents are kind of bizarre and shouldn't even exist.

Instead, though, patents are being treated as "one step up from copyright" - you can't build an identical stove, and you "can't build software that does the same thing". Which isn't the equivalent of patents at all. It's more the equivalent of a concept monopoly. If software patents were imported right back into the physical world, you'd have people able to put patent on "cars", or "stoves", as an entire class of thing.

I don't think software patents need to be "fixed". I don't think they need to be "abolished". I think what's necessary is realization that the entire concept of "software patent" doesn't even make sense, and that there really is no parallel with the physical world here.

Re:This is why we need to KEEP software patents (5, Interesting)

The_Noid (28819) | more than 6 years ago | (#21253303)

You're correct.
A patent is on an implementation. Abstract ideas are not patentable. That's why software patents make no sense, as software is already protected by copyright.
At least in Europe it still works that way :)

And with regards to drugs, if some else is so much smarter then you that they can produce the same pills a lot cheaper then maybe you're in the wrong business. Do you want to withhold the sick population from cheaper drugs just because the current patent holder is too dumb to produce it cheaper? I personally do not. Patents take away the need to innovate and thus they are bad.

Re:This is why we need to KEEP software patents (3, Insightful)

robot_love (1089921) | more than 6 years ago | (#21253579)

Maybe I just didn't follow you, but I think your drug argument ignores the development/testing cost of making drugs. Imagine Drug Company A spends $500 million developing an AIDS drug and then produces it at $1 a pill and sells it at $2. They must sell 500 million pills to recoup their investment.

If Drug Company B comes along and manages to produce the pill at $1.50, but didn't have to do the research and regulatory testing, they make money from the start.

Manufacturing costs are only a small portion of the cost of producing a drug. Allowing another drug company to compete only on manufacturing gives them a tremendous advantage. Patents allow Drug Company A to recoup their investment.

Your argument conveniently ignores the fantastic risk drug companies face when they develop a new drug. If it doesn't work the way the think it will, they face bankruptcy. Why would anyone take that risk if Joe Blow is going to export production to China and sell at half your price? Clearly patents have a use in this situation.

Re:This is why we need to KEEP software patents (1)

fishbowl (7759) | more than 6 years ago | (#21253883)


>Maybe I just didn't follow you, but I think your drug argument ignores the development/testing cost of making drugs.

It's because there are such deep wells of money available that there are such costs associated with drug development.

The actual researchers who make the discoveries and do the development and testing don't make much. Academic institutions get excited over, and compete for, grants in the five figure range.

Far more money goes into marketing and litigation than into science.

If the big pharma money wasn't there, even if the patent protection wasn't there, the research would continue. The people who actually do that research don't benefit from the money *now*, but they still work.

Re:This is why we need to KEEP software patents (1)

stony3k (709718) | more than 6 years ago | (#21254077)

They will still need to find a different method of producing the same drug. The original method of producing the drug is still patented, and I think you'll find that it's usually not trivial at all to find a different biochemical process to produce the same drug, especially at the limits of current technology. So there would be R&D involved, but the original company would not have a guaranteed monopoly.

The European model of only allowing the patenting of actual implementations would solve many of the current problems with the US patent system. Of course, the pharma companies would hate to see this happen and would lobby heavily against any such reforms.

Re:This is why we need to KEEP software patents (1)

Vancorps (746090) | more than 6 years ago | (#21254117)

Your argument also conveniently ignores the risk drug companies face even when developing off-brand products. The lower priced pill still has to go through all the regulatory testing. That will eat at the initial cost even if your procedures are streamlined a large portion of the process is paying for FDA regulation. Just because your drug is based on something out there doesn't mean you get to skip to the head of the line. Thankfully that thought process makes no sense and would scare the majority of people away from off-brand medication and they would have no way of making sure the pill was safe.

I'll also add that the production is already in China and in other countries as well. Production costs are separate from development costs. Just because you find a way to lower your production cost doesn't mean you magically get to ignore all the development costs. Sure you might save some money but the cost of coming to the market late which is the purpose of patents will make up the difference.

Re:This is why we need to KEEP software patents (1)

bytesex (112972) | more than 6 years ago | (#21254253)

The method for dealing with this scenario is described above: you MUST pass your newly developed drugs by government regulatory bodies in order for them to be released to the market. Same goes for safety stuff in cars, food products etc. Development of such processes could simply have a consequence that when you pass the tests - you get a monopoly for your product for n years. Won't stop the litigation (which is there now anyway), but will end patents for virtual things.

Re:This is why we need to KEEP software patents (1)

The_Noid (28819) | more than 6 years ago | (#21254397)

I'm very much aware of what it takes to get a drug on the market. Remember that without patent, a company doesn't need to publish the composition of the drug.
How long do you think it takes to analyse the drug, reverse engineer, clone and grow the micro-organisms needed to create the drug, implement a production process and get your version of the drug and your version of the production process certified? That process takes years, requires a lot of capital and will have to be totally redone by the copying company. And then, once you have the product, you still have to market it, and history shows that the first-mover advantage is huge.

Re:This is why we need to KEEP software patents (1)

speaker of the truth (1112181) | more than 6 years ago | (#21253313)

Being a granted a monopoly on a specific implementation is copyright
No it isn't. At least it isn't suppose to be. Once upon a time inventions weren't copyrightable and copyrightable material wasn't patentable. The fact that the patent system has been twisted to what it is now doesn't change how it once worked and how it should work.

Re:This is why we need to KEEP software patents (1)

Ginger Unicorn (952287) | more than 6 years ago | (#21254857)

i meant implementation of software. ie, the copyright on your code.

Re:This is why we need to KEEP software patents (1)

stevied (169) | more than 6 years ago | (#21253513)

This is the difference between software and manufacturing. In the software world, a specific implementation is copyright-able, as the code is the implementation, and the code is trivially copyable, like a work of literature. In physical manufacturing, the implementation isn't copyright-able, so patents exist to provide innovators with some protection. In software design, copyright already does this job, patents aren't needed, and are misused to protect abstract ideas, and not their implementation, which was never the intention.

Regarding pharmaceuticals, I feel patents are probably the more acceptable model, as modern drugs are definitely designed, and duplication / manufacturing is non-trivial and not zero-cost. Which isn't to say that there aren't arguments for tweaking the parameters of the system (patent duration length), or introducing public service obligations on pharmaceutical companies. Not to mention making clear that discoveries aren't patentable -- let's eliminate patenting of bits of the genome, or medicinal plants (but by all means patent methods for manufacturing the compounds found in those plants)..

The new style moustrap patent (0)

Anonymous Coward | more than 6 years ago | (#21253625)

"A method to contain or restrain a rodent or other pest using an object that has two states, one that allows free ingress into the device by a creature as defined in clause 1 which ingress causes a physical change of the device to deny egress to said creature".

Now, build a better mousetrap without falling foul of my patent!!!!

Re:This is why we need to KEEP software patents (1)

jotok (728554) | more than 6 years ago | (#21254231)

I disagree somewhat...sometimes you spend millions on R&D to discover a very basic concept that can be implemented any number of ways. That kind of thing ought to be protected as well.

I mean, say you're caveman Zog and you are the first person to discover how tasty (and healthy) cooked food is. There are plenty of ways to cook it, but for a little while at least Zog should get sole credit for being the inventor of "cooking," rather than simply the patent-holder for "flambe."

Re:This is why we need to KEEP software patents (3, Insightful)

Ed Avis (5917) | more than 6 years ago | (#21252935)

Why do you want to design a system to 'protect people who do something new'? Surely the system should be run to promote progress in science and the useful arts, as specified in the US Constitution?

Maybe it does promote progress to have patents on software, but it's not a foregone conclusion; study some of the arguments [mit.edu] (there may also be a good site arguing in favour of swpats, but I don't know of one) and decide what works best in the public interest, rather than just assuming that any measure in favour of 'inventors' is going to help the public.

Re:This is why we need to KEEP software patents (0)

should_be_linear (779431) | more than 6 years ago | (#21253047)

NetApp did something innovative with WAFL; Sun then came along, reimplemented everything, and called it ZFS.

No, CP/M came with all this "file system" stuff, NetApp then came along, reimplemented everything, and called it WAFL.

patent system is all about protecting people who do something new from corporations (like Sun or Microsoft) who just reimplement without adding anything new.

If they reimplement, then it is certainly bringing something new to the table, better competition on the market, if nothing else. History of software is history of reimplementing existing things again and again.

Re:This is why we need to KEEP software patents (1)

jcr (53032) | more than 6 years ago | (#21253493)

"CP/M came with all this "file system" stuff"

Say what?

We had filesystems in the mainframe and minicomputer world long before Kildall came along.

-jcr

Re:This is why we need to KEEP software patents (1)

eniac42 (1144799) | more than 6 years ago | (#21253057)

I disagree completely: This is why we need to keep software patents.

No it isn't!

You always copy stuff other's have done ... (1)

Pinky's Brain (1158667) | more than 6 years ago | (#21253065)

It's unavoidable. Innovation will happen with or without software patents, there are no original ideas which won't be thought of again in 17 fucking years. Metadata snapshotting is such an idea (I'm using the term a student doing research at IBM gave it when he reinvented it, because it's a much better name than WAFL).

Hell, I'd argue WAFL is just the filesystem equivalent of KeyKOS. Very few thoughts are original ... and when they are it's by accident not by brilliance. Brilliance is not in short supply.

Re:You always copy stuff other's have done ... (1)

jcr (53032) | more than 6 years ago | (#21253479)

I'd argue WAFL is just the filesystem equivalent of KeyKOS.

Could you elaborate on that? Does WAFL make all objects on disk identical in size, and leave it to higher-level code to decide on further organization? Does WAFL have a capability architecture a'la KeyKOS?

-jcr

Re:You always copy stuff other's have done ... (2, Informative)

Pinky's Brain (1158667) | more than 6 years ago | (#21253645)

No, but now you are getting into minutia of implementation. The essential concept they share is copy on write of data and snapshotting of metadata to allow you to quickly make fully recoverable checkpoints of the state. In the case of KeyKOS it's the state of the OS, in WAFL's case it's the state of the filesystem.

Oops, misunderstood ... let me rephrase (1)

Pinky's Brain (1158667) | more than 6 years ago | (#21253699)

I'd argue WAFL is just the filesystem equivalent of KeyKOS's checkpoint mechanism.

Re:This is why we need to KEEP software patents (1)

wizkid (13692) | more than 6 years ago | (#21253273)



Software is protected by copyrights. Because of the nature and how software and applications build upon each other, all patents do is lock the little guy that doesn't have a patent portfolio to protect himself. The whole idea of patents was to protect designs long enough for the original inventor to get a chance to build his business before some bigger fish could come along and copy what he designed. Because the way software interacts, and is used, all patents do is stifle innovation. This is the opposite effect that patents are supposed to have.
We would be better off scrapping software patents, and tweak copyright code to better protect Software designs, but still let innovation while limiting software snitching. Keeping software patents will only help Microsoft, and patent trolls. You are dead wrong.

Re:This is why we need to KEEP software patents (0)

Anonymous Coward | more than 6 years ago | (#21253553)

NetApp did something innovative with WAFL
Really? There are those who beg to differ [iu.edu] .

If you'd like to argue empirically, the facts are this: until recently, there were no software patents. That was in the early days of computing, when the field exploded exponentially. Therefore, software patents are not required to promote progress in the field, which is the only constitutionally allowed reason for their existence.

Your bleeding heart paeon to the little guy is also bunkum. Just ask Bill Gates:

If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today. ... The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high. Established companies have an interest in excluding future competitors.

That is what is going to happen here. Sun is going to squash Netapp like a bug. In this case: good. Sun has made it quite clear that they would rather compete on the merits, but Netapp is being run by greedy fools who's entire business is built entirely on other people's ideas. Arrogance like that deserves to be spanked.

Sun's claiming NetApps patents are dirty (1, Interesting)

Anonymous Coward | more than 6 years ago | (#21253589)

Read Sun's suit - the one filed in the court nearest both NetApp and Sun, not in some patent troll heaven 2000 miles away from both.

And if Sun's CEO is right about his implications regarding the NFS license, the entire foundation of NetApp's business is going to get washed away. Because it was Sun who did the innovating with NFS.

From my reading of the case, NetApp is fucked. Sun's claims are not likely to be false - they actually reference previous cases regarding the technology that shows up in NetApps patents where NetApp had to settle because NetApp stole the technology, and then NetApp misrepresented that in their patent applications regarding that very same technology...

To repeat: NetApp has done NOTHING innovative and they look FUCKED.

Re:This is why we need to KEEP software patents (1)

MyDixieWrecked (548719) | more than 6 years ago | (#21254131)

The problem with software patents is that the vast majority of them get in the way of future and present products and many, many may not be so "obvious" but are not really worthy of patenting.

A prime example is Microsoft's patent on start bar button grouping-- When the start bar is running out of room and a single application has several buttons on it, they can consolidate to a single button menu. This is first seen in XP, iirc and the patent is broad enough that no one can really create an application with a similar feature.

Another good example is Amazon's One-Click Check-Out patent.

The issue with software patents is that rather than patenting a way of implementing a specific feature, they patent the feature itself, and due to the wording, it applies to such a broad set of functions that it can be impossible to implement something similar to an unrelated product.

And that patent on putting the search query at the end of a URL without a query string? How the hell can you patent that?

So, you should patent the way of implementing multi-touch on a touchscreen, not the ability to actually utilize multi-touch. You should patent a specific way of detecting duplicate information on a filesystem and a method of storing the de-dupe information rather than patenting de-duping altogether.

The reason that patents actually stifle innovation is because you have these companies that own patents on things and they either don't implement them or they implement them in one product and then sit on it for years. Many companies do this while competitors have new ways of using that idea in their own products or even in unrelated products and that causes stagnation.

How can you do something new when an overly broad or overly simplistic patent gets in your way?

Re:This is why we need to KEEP software patents (1)

asuffield (111848) | more than 6 years ago | (#21254637)

NetApp did something innovative with WAFL


Actually, they lifted an idea that was already in common use in the major DBMSes. All they did was sell it as a 'filesystem' rather than as a 'database', and then take out a patent on calling it a 'filesystem'. This patent is absurd. It certainly isn't innovative, it is an obvious, logical step forward to anybody skilled in the art.

The problem here being that the number of people skilled in the art of filesystem design probably numbers in the hundreds, at most, and none of them work for the patent office.

Re:This is why we need to get rid of software pate (1)

valen (2689) | more than 6 years ago | (#21252871)


  Sun have a corporate culture of not suing people. But they also countersue, and in this case, HARD.

John

Re:This is why we need to get rid of software pate (5, Interesting)

BosstonesOwn (794949) | more than 6 years ago | (#21253011)

As a former Sun employee and still open solaris dev. I can say your 100 % right. They never like lawsuits. They understand all it does is make lawyers rich, and barely ever gets to the root of the issue, especially when a non technical judge or jury makes a decision based on how much a lawyer makes them think is right.

Re:This is why we need to get rid of software pate (0)

Anonymous Coward | more than 6 years ago | (#21252995)

Try to do something new,or innovative, and out come the lawsuits. Only the megacorps like Sun can really compete in the minefield that is software anymore. If we can get rid of the foolish software patents, and get copyright back into a reasonable time frame, maybe the US can get back to being an innovator, instead of merely a lawyers paradise.
Which is exactly why any patent "reform" will be biased towards large companies. Ie,, get rid of trolls, but still use patents to stifle innovation, progress, and competition.

I agree with you, the only real solution is to get rid of patents.

Re:This is why we need to get rid of software pate (0)

Anonymous Coward | more than 6 years ago | (#21255035)

We been spending most our lives living in a lawyer's paradise.
<sweat pouring down face>

captcha: atheism (SWEET!)

Translation for the non-lawyers (3, Funny)

Forge (2456) | more than 6 years ago | (#21252775)

Your honour this little fly-by-night company has dared to file a lawsuite against the glory that is Sun.

As a minimum response we want them bitch-slapped raked over the coals and then chopped up into little pieces and dumped at sea.

And just in case you don't think Sun is grand enough to make this happen, we are soliciting help from those people who want to reform the freakishly complicated patent system.

Thank you.

Re:Translation for the non-lawyers (3, Insightful)

chuckymonkey (1059244) | more than 6 years ago | (#21252829)

I understand what you mean by that post, however this really isn't one of the cases of SUN being the bad guy. It's someone thinking up an idea, patenting it, doing nothing with it, then suing when they think that someone has infringed on their patent. It's utter foolishness and does not contribute to the betterment of technology. All people like these idiots do is make lawyers rich and keep the little guy with a great idea and no money for a patent or the time to make sure someone hasn't already patented his/her idea terrified of going anywhere with it. Cases like this can only be fought by huge corps such as SUN and that to me is a very sad state of affairs indeed. The problems with the patent and copyright system really underscore the reason why the U.S. is controlled by the megacorp, only a megacorp can defend themselves from the slavering legions. As of this very moment if I were to have some novel idea come into my head for a software system the only recourse I would have is to sell it to a huge corp because no matter how great it was or how much people loved it if someone had patented that idea and chose to sue me for it I do not have the means to fight it.

Re:Translation for the non-lawyers (4, Insightful)

Forge (2456) | more than 6 years ago | (#21252929)

Actually I was just trying to be funny.

The reality is that the mega patent holders. IBM Sun and even Microsoft tend not to run out and file patent lawsuits to stop innovation but rather as a defensive measure to protect their business from litigious none innovative parasites.

NetApp isn't the worst of the bunch since they still have viable products on the market. Unfortunately they are so panicked over the possibility that we may use PC Servers with huge piles of massive SATA drives at a total cost way below the stuff they are selling.

If only they were able to come up with new products when someone else innovates enough to make what they are selling today a commodity.

So no offence to Sun but hey we should be able to make fun of our friends too.

Re:Translation for the non-lawyers (1)

Antique Geekmeister (740220) | more than 6 years ago | (#21253113)

Sir, I suspect that you've never attended the meetings where these intellectual property issues are used to resist open source tools. The IBM patent portfolio may be used defensively, but the Microsoft patent portfolio has in fact been used aggressively to block Linux and BSD UNIX installations. Go read the details of the interview with Steve Ballmer at http://money.cnn.com/magazines/fortune/fortune_archive/2007/05/28/100033867/index.htm [cnn.com] .

Re:Translation for the non-lawyers (1)

chuckymonkey (1059244) | more than 6 years ago | (#21253173)

Heh, I realized belatedly that I had bitten hook, line, and sinker too. I know the low UID thing is cliched, but the ones that are low and still around generally are fairly reasonable people. Once I looked a little deeper I realized that I was being reeled in and about to be someone's dinner, luckily I was small fry so you threw me back in the pond.

Re:Translation for the non-lawyers (1)

dropadrop (1057046) | more than 6 years ago | (#21254335)

Netapps filers are expensive, but it's still quite a push to consider replacing one with a box of sata-discs. We have a FAS-3020 cluster at work and I have to say it's really cool and performs very well. Now you could still manage the performance stuff with your big box of discs, but snapshots and cloning in near realtime without using up any space would not be that easy... Some might even consider Netapp to be cheap comparing to EMC.

Re:Translation for the non-lawyers (4, Informative)

Aladrin (926209) | more than 6 years ago | (#21253009)

Doing nothing with it? Their entire business depends on this lawsuit. If they lose this, EVERY product they sell will die. This is an excellent example of a patent doing what it is -supposed- to do: Protect the innovation and allow the innovator to profit from it.

Sun used the product from the patent and created a Free version without permission. That makes them a great 'Robin Hood', but it also makes them the 'bad guy' in the eyes of the law.

Re:Translation for the non-lawyers (1)

sigzero (914876) | more than 6 years ago | (#21253109)

I happen to think Sun is correct on this one but the courts (right or wrong) will decide the issue.

Re:Translation for the non-lawyers (0, Troll)

chuckymonkey (1059244) | more than 6 years ago | (#21253141)

Thank you for the insight, but really did NetApp write the code for ZFS? No? That's what I thought, the key difference is that it is an idea, not a product that they patented and it's very broad reaching at that. That's where the problem arises in software, there are very many different ways to attain the same goals. If they had patented an idea for say the actual appliance and software together as a product/method that's different and they should be protected, they should not however be protected when someone can take an idea they had and make a better product than them as that's called competition and advancing the state of the art. Do you think that it would have been good if someone patented the clickable button? What about a scroll bar? Maybe someone should have patented GUI. Would computing technology have reached the state it's in had these things been patented when they were dreamed up?

Re:Translation for the non-lawyers (5, Informative)

Paul Jakma (2677) | more than 6 years ago | (#21253461)

Sun used the product from the patent and created a Free version without permission. That makes them a great 'Robin Hood', but it also makes them the 'bad guy' in the eyes of the law.

You're stating as a matter of fact that Sun "used the product from the patent". This is stretching the truth somewhat. The actual facts of the matter are that NetApp claims Sun have violated their patent (WAFL, etc), and filed suit requesting relief. Sun however disagree and believe they do not violate NetApps' patents - indeed Sun claim, in their counter-suits, that NetApp are violating Suns' patents. However, no-one is violating anyone's patents until either both parties agree they are, or a judge says so.

You can read Suns' response to NetApps' complaint [sun.com] (which #include's most, if not all, of NetApps' complaint).

NB: I am a Sun employee. I have tried to keep the above post be 100% fact-based and opinion-free, but I am obviously biased, I also may be wrong and finally IANAL. Lector emptor.

Re:Translation for the non-lawyers (1)

psmears (629712) | more than 6 years ago | (#21254597)

Lector emptor.

Don't you mean 'caveat lector', unless it's intended to be a subtle sales pitch for your employer? ;-)

Re:Translation for the non-lawyers (1)

Paul Jakma (2677) | more than 6 years ago | (#21254685)

doh, of course yes :)

Re:Translation for the non-lawyers (2, Interesting)

Antique Geekmeister (740220) | more than 6 years ago | (#21253147)

Sun and NetApp have been arguing, for years, about patent issues both ways involving STK storage technologies purchased by Sun and used by NetApp, and in turn for these ZFS issues raised by NetAPP. From my experience with both, I'm inclined to believe that Sun is the one that wants actual open source competition, and that is innocent in patent violations. The Netapp appliances are painful to dig out the details of, and are exactly the sort of closed appliance that caused Richard Stallman to first become incensed and create the GPL. As such, they well deserve suspicion that they casually violate intellectual property rules.

In fact, I can think of one former Netapp kernel developer I met in another role where he couldn't understand why we published our Linux kernel patches, and thought we could reverse engineer any new Linux kernel back to his antique codebase for any new features we wanted, rather than releasing his modifications so that they would enter the Linux kernel development world and we could stop backporting and get some work done.

Re:Translation for the non-lawyers (1)

cartmans_trapperkeep (1151483) | more than 6 years ago | (#21253227)

Okay you should know something of your subject before posting. WAFL (or ZFS features) is and has been an integral part of NetApp storage for many years now. Before ZFS development was even started NetApp was basing its business off of WAFL on storage devices. In fact a few weeks ago NetApp was honored at an industry event for their innovation in developing WAFL (funny part is that Sun helped sponsor the event!). Sun comes along, and maybe not maliciously, copies the features of WAFL because of the value, sees the similarity, and quickly open sources it to be the "good guy". The patent system sucks--already had that discussion many times, but it seems pretty cut and dried. And on top of all this Dave Hitz from NetApp says he doesn't want to take ZFS away from the open source community, he just doesn't want Sun (it isn't capitalized!) to build their business on copied features to compete with them. Bottom line....NetApp is NOT a patent troll. Sun got their hand caught in the cookie jar.

Re:Translation for the non-lawyers (2, Interesting)

chuckymonkey (1059244) | more than 6 years ago | (#21253275)

I was being a little broad and overarching for the discussion I'll admit that. I am not completely in the dark about the case, for instance. "Hitz said the cross-licensing talks were halted in April after Sun claimed that NetApp's use of WAFL infringed on Sun patents." "Hitz said that during its negotiations, Sun did not specify which NetApp products infringed on its patents. However, he noted that Sun did say that most of those patents were gained through its $4.1 billion acquisition of Storage Technology Corp. in 2005." Yes SUN should quantify what patents NetApp infringed on, however we still don't know who owns WAFL patents. So here lies the problem, because the patent system is so broken who owns the patent rights to WAFL? How do we know that someone else out there in garage 20 years ago filed a patent for the same idea? Which leads to the deeper question, should anyone have the right to patent an Idea instead of a method?

Funny thing (1)

WindBourne (631190) | more than 6 years ago | (#21252783)

Netapp dislikes Sun so much, and yet, they use their OS [netcraft.com] While I run and push Linux, Solaris is a good OS and ZFS will be decent in years to come (still buggy). I find it interesting that Netapp decided to sue over this. These system do not really compete against each other.

Re:Funny thing (2, Interesting)

Anonymous Coward | more than 6 years ago | (#21252845)

Solaris is a good OS and ZFS will be decent in years to come (still buggy).

When used in a server environment, Solaris isn't merely a "good" OS. It's an excellent OS. In terms of scalability, it doesn't have any competitors. OSes like Linux, HP-UX, and AiX still can't match it, although they usually don't fare too badly themselves.

And ZFS is very stable. Although it's a relatively new product, it has still gone through many years of strenuous testing within Sun, plus even more outside in the real world. It's known to handle terabyte-sized data sets with ease. And its data integrity mechanisms do help to ensure that data corruption is only the work of buggy userland application software, rather than ZFS or Solaris itself.

Re:Funny thing (1)

WindBourne (631190) | more than 6 years ago | (#21253025)

At work (currently verizonbusiness), I am on Solaris. And we have found bugs in ZFS (as well as containers). While I am impressed by aspects of it, it HAS bugs.

Re:Funny thing (1)

swordgeek (112599) | more than 6 years ago | (#21253697)

Care to elaborate? We use it extensively, and have found bugs in the past which are long since (i.e. ~8 months) patched.

I've seen a fair number of bugs in Solaris lately, but absolutely none related to ZFS in well over half a year.

Re:Funny thing (1)

jedidiah (1196) | more than 6 years ago | (#21254289)

Scalability? No Competitors?

AIX and Linux will both quite handily scale as far as Solaris if not further.

Tru64 plain wiped the floor with Solaris.

This notion that Solaris is alone on some pinnacle is just fanboy nonsense.

Re:Funny thing (1, Interesting)

Anonymous Coward | more than 6 years ago | (#21252873)

IIRC, Sun went to Netapp first about patents (or something along those lines). Then Netapp found a few of its own patents relating to stuff used ZFS and Sun's legal dept. went very quiet.

Of course, I probably read this on a blog, so don't take my word for it.

Re:Funny thing (1)

makomk (752139) | more than 6 years ago | (#21253049)

That would be because they don't hate Sun. I think part of the reason they're suing was that Sun were being assholes over licensing the patents they own and are currently using against NetApp, and they wanted a better deal...

Re:Funny thing (1)

saik0max0r (1152903) | more than 6 years ago | (#21253907)

I don't know what you're smoking, but NetApp does not use Sun's OS.

In the interest of fairness (5, Informative)

$RANDOMLUSER (804576) | more than 6 years ago | (#21252831)

Here [netapp.com] 's NetApps CEO's blog post about this.

Re:In the interest of fairness (4, Insightful)

DingerX (847589) | more than 6 years ago | (#21253271)

Very cute. But there's a huge problem here. Let's assume everything that NetApp claims is true: That WAFL contains a bunch of unique ideas that are patent-worthy and protected by patent, and that ZFS infringes on them in a non-trivial manner.

Okay, so what are you going to do? Sue Sun?

If so, you'd better hope that there's nothing in Sun's patent portfolio that you're infringing upon. The way software patents have gotten these days, it's a pretty fair bet that NetApp runs afoul of at least a few of Sun's 14,000 patents.

To reassure folks internally, Dave appeals to ignorance:

"Can you ever remember a Fortune 1000 company being shut down by patents?

There's always a first time. And maybe that's what it will take to reform the system. While Sun can wave the F/OSS flag as they battle NetApp, they will end up proving a few scary points about the current state of the patent system:

1) If a company tries to use software patents the way they were intended, it will only be successful against companies smaller than themselves. The big boys will insist on a portfolio exchange; if that fails, one party will end up looking like SCO.
2) The only way to get money out of the "big infringers" is to have a company with zero liability of patent infringement, such as one with a litigation-based business model.
3) Software patents are a barrier to entry for small companies, and a perpetual liability.

breaking IP law != theft (1)

giafly (926567) | more than 6 years ago | (#21253373)

[Sun CEO] Jonathan's claim that "you cannot unfree what is free" sets a very dangerous precedent. It says that you can steal anything, as long as you open source it afterwards.
The record shows that everyone who deliberately confuses this issue this is a liar - RIAA anyone? - so that's made my mind up.

Sun Started this BTW.... (4, Informative)

Anonymous Coward | more than 6 years ago | (#21253163)

From the Netapp CEO's blog:

How did we get here?

"Like many large technology companies, Sun has been using its patent portfolio as a profit center. About 18 months ago, Sun's lawyers contacted NetApp with a list of patents they say we infringe, and requested that we pay them lots of money. We responded in two ways. First, we closely examined their list of patents. Second, we identified the patents in our portfolio that we believe Sun infringes."
http://blogs.netapp.com/dave/2007/09/netapp-sues-sun.html [netapp.com]

They did? (1)

z80kid (711852) | more than 6 years ago | (#21253503)

Ok, so NetApp filed the lawsuit, but Sun started it?

How does that work? Did Jonathon twist Dave's arm, haul him into the courthouse, and make him file?

It seems to me that if NetApp were merely defending themselves, they would be counter-suing over ZFS in response to a Sun-initiated lawsuit over other patents.

But that's not what's happening here, is it?

Re:They did? (1)

bhima (46039) | more than 6 years ago | (#21253605)

While I seriously doubt anyone posting around here truly knows for sure. This didn't just come out of thin air. According one of their CEOs Sun & NetApp have been annoying each for a while before the lawsuits started.

Personally, I'm not inclined to believe either of them all that much... I was just pointing out that NetApp possibly could be responding to Sun's threats with a lawsuit and thus be suing first.

I am sort of vaguely interested in ZFS and I do hope that this does not prevent some of the more interesting bits from making their way into other filesystems... or for that matter a fully bug free ZFS making its way into other OS's.

Storagetek "started" it ... (3, Insightful)

Pinky's Brain (1158667) | more than 6 years ago | (#21253551)

Lets ignore the whole unverifiable "intermediary" Sun's CEO brought up and lets also ignore Netapp's claim that Sun contacted them 18 months before that post.

The only real proof Netapp's CEO has provided is an email which states there were demands over one and a half year before December 2006 (so 27 months before that post, can't be the same communication he is talking about unless he doesn't know what he is talking about). Which puts it well before the takeover. Question is, did Sun push for them to enter a cross licensing deal after the takeover or was the deal proposed in the email inherited too? Hard to say without knowing the context of the single email provided.

All I know for sure is who initiated a lawsuit.

Confused (1)

Arancaytar (966377) | more than 6 years ago | (#21253571)

After reading the summary, I am not quite clear on who sued whom, who infringed whose patent and who the, ah, "good guys" are here.

I know, RTFA. But the summary could be a bit clearer.

short summary for those interested (1, Flamebait)

swordgeek (112599) | more than 6 years ago | (#21253751)

Here's the short summary: It's a biggest dick war between two idiotic ego-driven CEOs, that's gotten out of hand.

If you dig far enough, NetApp asked Sun about disclosure on patents. Sun replied, NetApp said that's not good enough, Sun said, bite us, NetApp said we'll sue, Sun said we'll give you the info you want if you agree not to sue and pay us $36mil (or thereabouts), NetApp sued, Sun countersued, and so forth.

I use NetApp and Sun gear daily, and have done for years (decades?) now. Both are pretty much tops in their fields, both have some quirks, and both stand on their own without competing badly with the other (honestly, when was the last time Sun had a non-laughable disk storage system?). However, I'm sick of that pony-tailed bean-counting pinhead Schwartz, I'm sick of Dave Hitz "master of lying and crocodile tears," and I'm sick of fuckheads like this destroying good companies for the sake of their pathetic egos. Let's toss 'em in a room with their lawyers and weld the doors shut. The industry would be better off.

Prior art:DEC AdvFS (1)

An dochasac (591582) | more than 6 years ago | (#21253911)

What can NetApp's patent do that Digital Equipment Corporation's AdvFS [wikipedia.org] couldn't do in the 1990s?

Software patent thugs, a pox on all your houses!

Re:Prior art:DEC AdvFS (1)

makomk (752139) | more than 6 years ago | (#21254357)

It's not just a question of what it can do, it's a question of how it does it. Without more info, I can't tell if AdvFS works in anything like the way WAFL and ZFS do, but it probably doesn't.

Easy... (1)

tkrotchko (124118) | more than 6 years ago | (#21254495)

"What can NetApp's patent do that Digital Equipment Corporation's AdvFS couldn't do in the 1990s? "

Survive.

In other words (1)

bytesex (112972) | more than 6 years ago | (#21254561)

Mr Schwartz is pissed as hell.

Why is Sun blogging about this? (1)

harlows_monkeys (106428) | more than 6 years ago | (#21254595)

One of the first things your lawyers tell you when you are involved in litigation is to shut up about it. Why is Sun blogging about a case they are actively involved in?

Delighted to see Netapp takiing it! (5, Informative)

HKcastaway (985110) | more than 6 years ago | (#21254609)

Netapp are a company that do their best to make sure their products are not sold in the 2nd hand market and once a product EOL there is little chance to use it.

I have a few Netapps here and can't use them because Netapp will not release the activation license key.

An IT future without Netapp's built in obsolescence is a better future.
I hope Sun has a field day with them.
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