Sun calls NetApp's blog bluff...with open source...in a blog

It's fascinating to see how blogs are being used these days.

On Wednesday, Dave Hitz, co-founder of NetApp, used his blog to explicate the company's reasons for suing Sun Microsystems over ZFS patent infringement. On Thursday, Jonathan Schwartz, CEO of Sun, fired back using his own blog, telling a very different story from Hitz's.

And, when I asked NetApp to respond to why it had chosen to respond to Sun now, rather than when Sun announced it was open-sourcing ZFS, Hitz replied...in a comment to my blog.

This is a very new world we live in. It's also one that Schwartz is convinced open source will win, as he suggests (in his blog):

NetApps first approached StorageTek behind the cover of a third party intermediary...seeking to purchase STK patents. After Sun acquired STK, we were not willing to sell the patents. We've always been willing to license them. But instead of engaging in licensing discussions, NetApp decided to file a suit to invalidate them. To be clear, we never filed a complaint or threatened to do so, nor did anyone, to the best of my knowledge, in the ZFS community.

We're all focused on innovation and winning customers, not litigation.

...(W)e use our patent portfolio to protect communities, and indemnify customers....

The rise of the open source community cannot be stifled by proprietary vendors. I guess not everyone's learned that lesson.

Frankly, this is amazing, given Sun's past. Not as a litigator--I don't mean that. I mean, Sun had traditionally been a hard-core proprietary vendor that would fight relentlessly in the market with its IP. Now it's fighting a different battle, and still with IP, but in a very different way. It's giving that IP away and selling service (and hardware) around it.

I wonder if this new stance was such a challenge to NetApp's way of doing business that it responded with a lawsuit, trying to invalidate not just Sun's patents but also its approach to doing business? Namely, an open-source approach.

I know nothing about the validity of either side's patent claims. Only a judge (or, more likely, a settlement) will elucidate either claim. But I have watched Microsoft respond to open source with patent FUD, and I'm willing to believe that others will fight back in this same way. I don't know that NetApp is--Hitz argues pretty persuasively that there were other reasons involved--but I do believe that any company that relies on an old way of selling its software needs to respond to the open-source threat.

Patent suits are one way to do that. An ugly, and ultimately futile way, but a way nonetheless.