Sun Shows NetApp How A Patent Nuclear War Works

from the you-sure-you-want-to-do-that... dept

While you can question the motives, Sun has actually been quite vocal recently over the question of software patents. Sun CEO Jonathon Schwartz has pointed out that successful companies innovate while unsuccessful ones litigate. And, indeed, Sun hasn't been going around filing patent lawsuits left and right, (or threatening to do so) like some other companies. However, it's quite clear that Sun understands the value of defensive patenting, since patents have become the nuclear stockpiling of the software world. Thus, it should come as no surprise that following Network Appliance's decision to sue Sun for patent infringement that Sun has struck back hard, accusing Network Appliances of violating 12 patents, and basically saying that many of NetApps' offerings are in violation and should be blocked. Schwartz makes it clear that he'd prefer to avoid this sort of nuclear response, but he's sending a message: if you're going to sue rather than innovate, you need to be prepared for the response to come back much more forcefully. There's no doubt that some of this is clearly posturing on Sun's part, to win more fans in the open source community -- but that's a perfectly good reason for doing what they're doing. The end result is expressing what many of us around here believe: competition drives innovation. Patents, on the other hand, remove competition -- and therefore tend to hinder that innovation. Having to use patents defensively is an unfortunate and expensive negative externality of the system, and it's nice to see Sun publicly supporting that position.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    RandomThoughts, Oct 26th, 2007 @ 11:54am

    So Sun innovated (wait, I thought bringing something to market was innovation, not patents?) and now uses patents defensively, this reduces innovation?

     

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  2.  
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    RandomThoughts, Oct 26th, 2007 @ 11:59am

    And if all a company does is sue, how can they infringe on someone else?

     

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  3.  
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    Killer_Tofu (profile), Oct 26th, 2007 @ 12:03pm

    Just Wait

    For this one to get approved (since it probably would in the US). Then even if all they do is patent horde and sue, they are still infringing.
    http://www.techdirt.com/articles/20071021/141623.shtml

     

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  4.  
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    Mike (profile), Oct 26th, 2007 @ 12:05pm

    Re:

    RandomThoughts, do you sit here all day reloading Techdirt? You seem to post before even *I* realize I've put a post up...

    So Sun innovated (wait, I thought bringing something to market was innovation, not patents?) and now uses patents defensively, this reduces innovation?

    Now you're just playing around, right? Go back and read the post. There are two separate things: innovating and getting patents. They're not the same. No one ever said that they were mutually exclusive, however. So someone could innovate and patent at the same time.

    But, yes, it does reduce innovation. Companies waste money filing for and defending patents -- money that could go towards more real innovation. And, all those patent disputes delay or hold back the competitive elements that really drive innovation.

     

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  5.  
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    4-80-sicks, Oct 26th, 2007 @ 12:06pm

    Go Sun!
    I don't understand how NetApp can try to sue over ZFS. Is this a case where someone files a patent for something that already exists and is already in use? Schwartz says NetApp wants Sun to pull ZFS from OSS and not allow it to be used on hard drives--what elese would you use it on?? And what claim can NetApp lay to ZFS when it's clearly documented that Sun came up with it in the first place? Whattabuncha jerks.

     

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  6.  
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    Mike (profile), Oct 26th, 2007 @ 12:07pm

    Re:

    And if all a company does is sue, how can they infringe on someone else?

    Which is exactly the big complaint many people have about the companies that just sue. In the past, many of these patent nuclear wars were held at bay, because no one wanted to get sued back (the "nuclear stockpiling" argument). The patent hoarders made that much more difficult because there was no way to sue them back for infringement as well.

     

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  7.  
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    4-80-sicks, Oct 26th, 2007 @ 12:07pm

    Re: #1

    RandomThoughts, did you even read the post that Schwartz made? Or the TD post for that matter?

     

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  8.  
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    ScaredOfTheMan, Oct 26th, 2007 @ 12:14pm

    Nice Mike!

    Thank you for making me laugh out loud (for real, not the little chuckle that usually = LOL) after reading your headline.

    very witty indeed.

     

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  9.  
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    Susheel Daswani, Oct 26th, 2007 @ 12:18pm

    Same old Technique

    I hate to start up the argument wheel, but Mike is avoiding the obvious retort to his statement that "[p]atents ... remove competition -- and therefore tend to hinder that innovation." His statement ignores any innovation that resulted from the drive to patent. The patent system acknowledges that the loss of some competitive activity is balanced by the gain in innovation (or invention, whatever). I agree with a lot of what Mike says (i.e., it isn't clear if the balance is worth it), but he stubbornly likes to frame the debate by labeling those who believe in the patent system as pro-monopoly / anti-competition.

     

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  10.  
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    Anonymous Coward, Oct 26th, 2007 @ 12:23pm

    Yay Patent Caribean Crisis!

     

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  11.  
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    4-80-sicks, Oct 26th, 2007 @ 12:36pm

    Re: #9

    It's not black and white, Susheel. You seem to be refusing to accept nuance and the concept of cross purposes.

     

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  12.  
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    Overcast, Oct 26th, 2007 @ 1:15pm

    Sometimes, I think the lesser of the two evils would be to just do away with Patents and let the best quality win in the free market...

    But I know that's not sensible - well, or is it? Obviously, the system in place now is far from sensible..

     

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  13.  

    Good For Sun

    I love the counter offense Sun is putting up. Let them all know what to expect should they get "patent anxiety" and attempt to sue Sun.

     

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  14.  
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    Anonymous Coward, Oct 26th, 2007 @ 2:15pm

    I just started reading blog posts on this issue, and NetApp said they were threatened by Sun first..

     

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  15.  
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    Susheel Daswani, Oct 26th, 2007 @ 2:35pm

    Re: Re: #9

    If Mike accepted nuance he wouldn't ignore that possibility that the patent system may be aiding innovation. He seemingly leaves no room for that possibility.

     

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  16.  
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    RandomThoughts, Oct 26th, 2007 @ 3:44pm

    Ahhh, the joys of conference calls. Besides, I don't put in all that much effort into most of my posts and just type off the top of my head. Seems you do the same with your articles at times.

     

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  17.  
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    Mike (profile), Oct 26th, 2007 @ 5:37pm

    Re: Same old Technique

    I hate to start up the argument wheel, but Mike is avoiding the obvious retort to his statement that "[p]atents ... remove competition -- and therefore tend to hinder that innovation." His statement ignores any innovation that resulted from the drive to patent.

    Susheel, I'm not ignoring it. I've pointed to the research that shows that it's not needed. Yes, patents give some people monopoly rents, but the purpose is not monopoly rents -- it's to create incentive for innovation. Yet when you look at the economic research, you see over and over again two important trends: innovation works just fine in the totally open market without patents *and* patents quite often hinder innovation.

    So, no I don't deny that there may be cases where patents can create incentives for *some* kinds of innovation -- but it's skewed, because it focuses research efforts just on innovation that can be patented, and that's a problem. It is, in effect, the gov't picking who gets a subsidy and who doesn't.

    And, if you believe in the open market to do a better job picking winners and losers, then you probably don't want the gov't subsidizing some times of winners and losers.

     

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  18.  
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    Mike (profile), Oct 26th, 2007 @ 5:40pm

    Re: Re: Re: #9

    If Mike accepted nuance he wouldn't ignore that possibility that the patent system may be aiding innovation. He seemingly leaves no room for that possibility.

    I'm all for nuance, but I like to keep my posts relatively short. That's why I link back to older articles so people can dig and understand the more nuanced points.

    As I said, I've never ignored the fact that the patent system creates certain incentives, but I argue (and the econ research backs this up) that those incentives skew the market, and that's not good for anyone.

    In the meantime, when I pick on a specific patent fight and show how it's harming innovation, I believe I'm pretty clear on the specifics. If you believe that this particular patent battle is NOT harming innovation, please explain how.

     

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  19.  
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    Mart, Oct 27th, 2007 @ 6:11am

    I never really get how people can still claim that (only) patents lead to innovation. Just look at Europe. We don't have any sort of patents on software here. If the patent theory was correct, this would mean that there would hardly be any innovation in that area. This is where the theory breaks off course, because there's lots of innovation in Europe, from small to large companies developing all sorts of new products. So why don't "you Americans" look outside of your borders for this one time and see that patents (in software) are only costing the industry, and don't have practical use?

     

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  20.  
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    Bryan, Oct 27th, 2007 @ 8:38am

    Proportionate response

    Waitaminute. Sun fired its popgun first, saying: Hey, we want $36M in licensing for tech we bought some patents to.

    NetApp fired a popgun back, saying in effect: OK, on this matter, let's go to court and see who owns the IP.

    Sun fired the third shot in the war, a nuclear bomb: All your NetApps are belong to us. Kiss your business goodbye, suckers, nobody plays proportionate response with us! Oh, and don't forget, we're the nice guys!

    This is considered justifiable? Mike, I usually agree with you, but I wonder if you don't want to rethink this one.

     

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  21.  
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    Justin, Oct 28th, 2007 @ 11:42pm

    Re: Proportionate response

    Wrong.

    NetApp went to StorageTek in 2002 asking to buy some of storageTeks patents.

    StorageTek refused to sell but it said that it would license those patents to NetApp.

    Sun buys StorageTek and continues the negotiations that NETAPP started.

    NetApp then files a lawsuit against Sun....

     

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