The software patent cold war is getting less cold

October 26, 2007 5:26 AM

[Patent Lawsuit Filter] On Wednesday Sun Microsystems announced a counter suit against Network Appliance, wherein they will draw on their "defensive portfolio" which is "one of the largest patent arsenals on the internet". They are going to be requesting a permanent injunction to remove all of NetApp's filer products from the marketplace, and also seeking monetary damages (half of which they've pledged to donate to the Software Freedom Law Center and Peer to Patent Project). Last month, NetApp sued Sun for patent infringements in ZFS. Earlier this month in Texas, the first ever patent infringement lawsuit against Linux distributors was filed.

The plaintiff in the case against Red Hat and Novell is IP Innovation and Technology Licensing, a company that successfully got some money from Apple with a similar claim earlier this year. They're owned by Acacia Technologies, a company with close ties to Microsoft, which has caused some to suggest that this suit might be more about spreading FUD than about securing licensees for patents.

The Sun/NetApp case is less clear-cut. In September, the founder of Network Appliance (Dave Hitz) announced on his blog that they were suing Sun for patent infringement, explaining that "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." Sun's CEO (Jonathan Schwartz) replied on his blog, thanking NetApp for suing them and saying that "Sun did not approach NetApps about licensing any of Sun's patents and never filed complaints against NetApps or demanded anything." Dave replies that he is stunned by Jonathan's response, in a post titled "Sun Patent Team Demanded $36 Million From NetApp". After this, their blogs went silent on the subject for a few weeks. Then, Jonathan announced the counter suit (the first link in the fpp), and Dave responded with two more blog entries. Groklaw has reason to believe Microsoft is also involved in this case.

posted by finite (36 comments total)

Innovation, litigation, really -- what's the difference?

But honestly the whole NetApp/Sun thing is weird. I doubt that we'll ever really get the full story. Both companies are claiming that they're acting defensively, and claiming that the other guy shot first. That in itself is interesting, at least insofar as it shows that the offensive use of patents is deemed somewhat 'uncivilized' by tech companies that actually produce stuff and need to maintain a positive image. If they both have big defensive portfolios (of sufficient quantity and breadth so that nobody could do any work of significance in the field without infringing some of them), they're eventually going to have to compromise and cross-license.

The Linux thing is almost certainly a ploy by Microsoft. Their previous anti-Linux attack dog (SCO) is toothless and is close to being taken out behind the shed once and for all. With no more damage to do on that front, it makes sense that they'd open up a new one.
posted by Kadin2048 at 5:49 AM on October 26, 2007

Lawyers may cost more per hour than engineers, but they have a higher profit potential.

You can argue all day about what the Founding Fathers meant by this or that part of the Constitution, but there's no way in hell that this was what the patent system was intended to foster. "Freedom To Innovate" my ass.
posted by tommasz at 5:53 AM on October 26, 2007

A data point that I don't see in your links is that just a month ago, Sun bought the Lustre file system, a move which puts them in direct competition with NetApp.
posted by octothorpe at 5:59 AM on October 26, 2007

tommasz, how otherwise are inventors to protect their rights? If negotiations fail, it's either capitulate or litigate.
posted by exogenous at 6:57 AM on October 26, 2007

You have got to love the strategy of Mutual Assured Destruction.
posted by caddis at 7:07 AM on October 26, 2007

It's interesting. Microsoft's use of "Proxies" (if that's really what they're doing, and no paranoia on behalf Groklaw) makes them semi immune from being hit with the defensive patent defense.

You goad some small pathetic company into attacking Open Source, and the lawsuit would really be the only way the company would make money (similar to the guy who sued over IE plug ins, he had nothing to lose)

But if Microsoft is 'behind' the attack, why not use your portfolio directly against MS? I'm sure there are plenty of patents that Microsoft is infringing, and Sun is pretty invested in open source now (both Java and I believe Solaris are GPL'd)
posted by delmoi at 7:34 AM on October 26, 2007

But if Microsoft is 'behind' the attack, why not use your portfolio directly against MS?

It may be because Microsoft and Sun entered into a settlement over past infringement issues and were negotiating on a patent cross-licensing agreement back in 2004. I don't know exactly what came of those negotiations, but if they were successful then it would be difficult for Sun to sue MS directly. Maybe they should get their own proxy?
posted by jedicus at 7:39 AM on October 26, 2007

But if Microsoft is 'behind' the attack, why not use your portfolio directly against MS?

It may be because Microsoft and Sun entered into a settlement over past infringement issues and were negotiating on a patent cross-licensing agreement back in 2004. I don't know exactly what came of those negotiations, but if they were successful then it would be difficult for Sun to sue MS directly. Maybe they should get their own proxy?

I thought MAD was rad but that'd put this on a whole new level of cold-war-ness.
posted by Anything at 8:06 AM on October 26, 2007

In a patent fight between two companies, you only need one patent to win. 20 patents vs 1? Doesn't matter; if your 1 is strong, then you can negotiate evenly against the 20.

Patents, the engine of lawyerly innovation!
posted by Nelson at 8:17 AM on October 26, 2007

You goad some small pathetic company into attacking Open Source, and the lawsuit would really be the only way the company would make money

Except that NetApp isn't a small pathetic company, but a major player in the storage world (and, yes, they're still innovating).
It seems the whole affair goes back to StorageTek, bought by Sun Microsystems a while back, and is quite a mess.
As of Microsoft involvment in the suit, it's far-fetched. Microsoft and NetApp do work together, but it's mostly on NetAPP integration in Windows environment (NetApp works very well with Active Directory and ACLs). NetApp also works with Oracle, Arch-rival-EMC's subsidiary VMWare and, yes, Sun and StorageTek.

(Full disclosure: i'm a very happy NetApp customer, and have been for about 10 years. And ZFS isn't, for now, even remotely a threat to NetApp, as far as i'm concerned)

Octothorpe, the suit seems to predate the buyout of Lustre..
posted by vivelame at 8:36 AM on October 26, 2007

exogenous, the drafters of the constitution obviously meant for patent holders to be able to sue if their patents were infringed. The trouble here is that a lot of new patents seem to be on ideas that are either obvious or unavoidable once you start working with a given new technology. Furthermore the pace of development has accelerated so rapidly that the original fourteen year monopoly on market use is much too long.

It isn't that patents shouldn't exist per se, it's that the patent system as it exists now is broken and needs to be reformed fairly radically if it's to foster rather than discourage innovation.
posted by Loudmax at 8:47 AM on October 26, 2007

The Linux thing is almost certainly a ploy by Microsoft

Almost certainly?

The company behind the Linux suit is Acacia - a well-established patent licensing firm with no obvious connection to Redmond, but a long history of enforcing patents. Acacia have spent years collecting royalties from porn sites and hotel cable TV systems that infringe their streaming on demand patent. Acacia seems more likely to be a company that would sue MSFT - and anyone else with deep pockets - than act on their behalf against lower tier players.

The Linux kernal and most Linux distributions have been developed with little or no regard to third party patents - apparently under the ignorant hope that patents would never be a real problem. Someone, IBM, the US Congress, the European Commission, Santa Claus would swoop down declare software a patent free zone, and save the day. In a world where patents exists - and are unlikely to be abolished - this has been foolish and naive.

Instead of a penguin, they should use an ostrich.
posted by three blind mice at 8:54 AM on October 26, 2007

Except that NetApp isn't a small pathetic company, but a major player in the storage world (and, yes, they're still innovating).

I was talking about the other suit. The net-App thing is clearly a "real" dispute.
posted by delmoi at 9:11 AM on October 26, 2007

The Linux kernal and most Linux distributions have been developed with little or no regard to third party patents - apparently under the ignorant hope that patents would never be a real problem.

TBM: the reason patent issues are not looked into with the Linux Kernel is that is that there is a huge legal difference between intentionally violating a patent, and violating a patent unintentionally. So it would actually be a big mistake for Linux developers to look into patent issues, since there are probably vast reserves of "defensive" patents out there that no one is intending to use, but would require tremendous effort to track down and clear.
posted by delmoi at 9:14 AM on October 26, 2007

three blind mice, I do rather agree with you. I'd also add that the only reason why Linux did not attract patent lawsuits before was a very simple one: there was no profit in it. Since some distributors, like Red Hat have become large, wealthy companies, and others, like SuSE, have been swallowed by large wealthy companies like Novell, they have turned into much juicier targets, much like YouTube suddenly became the target of much copyright litigation when Google bought it.

Incidentally, that brings Linux closer to Microsoft, rather than against it. If you read in detail Ballmer's whines, what really annoys him is not Linux (allegedly) infringing Microsoft patents, but not being hit with the kind of lawsuits from small patentees such as Eolas that have already cost Microsoft billions.
posted by Skeptic at 9:21 AM on October 26, 2007

So you agree with the ostrich logo?
posted by the number 17 at 9:21 AM on October 26, 2007

delmoi: There is not such a huge difference. Indeed, once the infringer is notified, he is intentionally (or rather, "wilfully") infringing anyway.
posted by Skeptic at 9:22 AM on October 26, 2007

First of all, I don't mean to post more then once, TBM's comment was quite dumb.

hope that ... Someone, IBM, the US Congress, the European Commission, Santa Claus would swoop down declare software a patent free zone

Do you have any evidence that software can be patented in Europe? Because right now You can't patent computer programs in the European Union.
posted by delmoi at 9:26 AM on October 26, 2007 [1 favorite]

delmoi: There is not such a huge difference. Indeed, once the infringer is notified, he is intentionally (or rather, "wilfully") infringing anyway.

Not if they stop doing it. And anyway, who are you exactly to say there's not a huge diffrence? I mean, I'm pretty sure that Linus didn't just come up with his policy by reading random posts on the internet to come up with his view of patent law. According to the guys who are actually involved in implementing this policy, it was based on sound legal advice, from people who actually know what they're doing.

So are you claiming that Linus, et al. are lying about getting sound advice, and are actually talking out there ass? Or do you feel like their experts are wrong and that you're right? And if you think that, what basis do you have to make that claim?
posted by delmoi at 9:33 AM on October 26, 2007

if that's really what they're doing, and no paranoia on behalf Groklaw

She's stopped running from SCO's hitmen then? :-)
posted by PeterMcDermott at 9:35 AM on October 26, 2007

over linked; didn't click
posted by bonaldi at 9:44 AM on October 26, 2007

delmoi, patent infringement is a strict liability tort. Willfulness goes only to damages, and does not bear on whether there was infringement.
posted by exogenous at 11:37 AM on October 26, 2007

Defensive Patent Portfolio, my ass. At some level they are used this way; when one big boy attacks the other, some defensive fire comes back and the big boys come to a wide-spread cross licensing agreement.

But what happens when a little guy innovates and patents? If he goes off and sues the big boy, the big boy fires back too. Now he can cross license, but it is likely his IP is his only source of revenue (directly or indirectly), so if he cross licenses he might as well hang it up and go home.

Defensive Patent Portfolio's are really a license to steal from small companies. The only saving grace is that most of the big boys in the business are so overwhelmed with cash that they tend to just buy the little guy, grab the IP and the team all in one go (and then squander it, but that is a different story)
posted by Bovine Love at 12:37 PM on October 26, 2007 [1 favorite]

I'm having a similar problem with TBM's position above: It leads to the conclusion that the only people qualified to code at all are those working for some Big Company, preferably with a sizeable legal department.
posted by the number 17 at 1:09 PM on October 26, 2007

The Linux kernal and most Linux distributions have been developed with little or no regard to third party patents

I write software that is in Linux distributions, I work for a large company with lots of lawyers and a large patent portfolio, and I have never once in my life stopped what I was doing to go and make sure that the software I was writing wasn't infringing on some patent. Why? Because nearly everything is patented. You can easily say

"The Windows NT kernel, and most Windows versions, have been developed with little or no regard to third party patents" or "ActiveDirectory has been developed with little or no regard to third party patents" or "OSX has been developed with little or no regard to third party patents".

because just about everything you do, obvious or not, in this industry infringes on someone's patent. I wouldn't be surprised if someone has patented doubly-linked lists. The problem is a broken system, not programmers putting their head in the sand.
posted by cmonkey at 1:23 PM on October 26, 2007 [2 favorites]

Seriously. I don't know any programmer who sits down and thinks to himself, "Alright, before I get underway, lets make sure there isn't a patent for...."
posted by chunking express at 2:00 PM on October 26, 2007

From what I've understood, what Microsoft has been doing is to give vague threats concerning supposed patent violations, threats that can not be responded to in any way, and which can go on indefinitely hurting Linux business. If Microsoft actually clarified what they were talking about, the devs could quickly replace the infringing code, thus throwing that particular ace out of Microsoft's sleeve. For MS, vague threats are a better option.

Now, if the Linux devs can make the case that there can be no repercussions for unknowingly infringing patents, with enough fanfare that J. Random CEO dares to stop cowering under Windows, and consider free software, MS will have to reveal its cards or stop whining.
posted by Anything at 2:32 PM on October 26, 2007

Actually, since knowingly infringing on a patent can really really hurt you for putative damages, I think the last thing most companies want to hear is "I was checking around and this infringes on X patent..."

In previous job I was quietly encourage to not check for patents. No facility, help or encouragement was given to any programmer to check for patents. Only if I were to trip over one flat out would anything be done. When that did happen on a couple of occasions, it turned out we had a blanket cross licensing deal. Even when I patented stuff I did, we didn't look too hard for prior art; no one said "don't", but they would tell us to use our time wisely (which makes since, since prior art attacks are pretty rare anyway).
posted by Bovine Love at 2:34 PM on October 26, 2007

hmm ... punitive, not putative. What is putative anyway? Damn spell checkers.
posted by Bovine Love at 2:35 PM on October 26, 2007

Do you have any evidence that software can be patented in Europe? Because right now You can't patent computer programs in the European Union.

Well, I don't know...apart from having drafted a few patent applications in that field. But let's just look at the wikipedia article you linked to yourself, do you mind?

Under the EPC, and in particular its Article 52, [1] "programs for computer" are not regarded as inventions for the purpose of granting European patents, [2] but this exclusion from patentability only applies to the extent to which a European patent application or European patent relates to a computer program as such. [3] As a result of this partial exclusion, and despite the fact that the EPO subjects patent applications in this field to a much stricter scrutiny [4] when compared to their American counterpart, that does not mean that all inventions including some software are de jure not patentable.

And I'll not even go into the matter that the European Patent Convention has nothing to do with the European Union...

And anyway, who are you exactly to say there's not a huge diffrence?

Well, a former patent examiner and, within a few months, a fully qualified European patent attorney...

I'm pretty sure that Linus didn't just come up with his policy by reading random posts on the internet to come up with his view of patent law.

I don't know about him, but it seems like you did.
posted by Skeptic at 2:44 PM on October 26, 2007

There are hundreds of now dead mathematicians chanting "told you so." Back when patents were a new idea, the mathematics community declined, claiming that in mathematics, the free flow of ideas is more important than legal protection.

Software is really just math writ large. And we're seeing that the mathematicians were right. Go ahead and patent your new kind of socket wrench. Keep your patents off my latest algorithm!
posted by TeatimeGrommit at 2:51 PM on October 26, 2007 [2 favorites]

bonaldi: over linked; didn't click

Thanks for saying so, I was worried about that. This is my first fpp and I almost posted it with only 4 or 5 links, but then I realized that it would be easy to miss the back and forth blog posts between Dave and Jonathan so I decided to link to each of those. And then I thought I should fill it out with some wikipedia links, to provide a little background for people who have never heard of NetApp or ZFS or even Red Hat. But yeah, 20 links from 10 sites was probably too many. If you only want to read two or three of them, I'd suggest the latest blog entries from Sun and NetApp, and then the groklaw post. Can anybody who did click the links suggest which I should have omitted? Or that I did omit and shouldn't have?

Seeing that Groklaw and even Eben Moglen (of the Software Freedom Law Center, who Sun will share the spoils with if they win) have sided with Sun, I'm inclined to assume they've done their homework. I don't believe that Eben would back Sun's position if he believed they were the instigating "patent troll" here.

But, I am really curious as to why Jonathan's blog seems afraid to acknowledge the existence of Dave's blog, even while replying to it, despite Dave linking to Jonathan's posts at every opportunity. If you only read Sun's side of this you wouldn't know that the NetApp side is blogging it too. NetApp is clearly winning at being transparent, so far, for whatever that is worth.

Also, I thought patent troll was once a term reserved for people and companies who's main business is buying and licensing patents, companies who don't actually innovate or even make anything (except patent agreements, and money). But now, Jonathan has repeatedly referred to NetApp as patent trolls, despite that they undeniably have brought innovative products to market. Not that I object to characterizing people who sue for patent infringement as trolls; but am I correct that this term's accepted meaning is changing before our eyes?

I am a free software proponent, a patent abolitionist, and a bit of a cynic, so I have no trouble believing that NetApp v. Sun could be yet another Microsoft proxy war. As such, despite not liking Jonathan's lack of blogging etiquette, I'm naturally inclined to sympathize more with his position than NetApp's. It is interesting to note that both Sun and Novell made deals with the devil Micros~1 recently, but those deals don't seem to be protecting them from patent attacks by Microsoft's proxies.

I think the cold war analogy fits quite well, from the stockpiled arsenals and mutually assured destruction, to the proxy wars engineered by superpowers. Furthermore, I think that contrary to the popular jokes about Linux being "communist", MS is actually a lot more like the soviets than their open source opponents are. Microsoft's lock-in empire is a modern day command economy, and the free software world is more of a free market meritocracy, is it not?
posted by finite at 4:51 PM on October 26, 2007

Well, a former patent examiner and, within a few months, a fully qualified European patent attorney...

And I'm sure you're interested in protecting and expanding your job. If you and TBM had your way, software design would be about 30 years behind where it is today. Software developers never worry about patents, it just doesn't happen. It would be impossible to write software at the level we do today if we had to check whether the ideas we were using were patentable.

The web browser you're using right now? That infringes at least two former patents I can think of. The browser plug in patent, and the gif compression patent.
posted by delmoi at 7:58 PM on October 26, 2007

The web browser you're using right now? That infringes at least two former patents I can think of.

You can add IP Innovation's patent from the fpp (#5,072,412) to the list of not-yet-former patents, at least if you've got tabs in your browser. There are probably hundreds more. What were all those software developer clowns thinking, carelessly creating so much software where "workspaces provided by an object-based user interface appear to share windows and other display objects" without first checking if it was patented?? Idiots!
posted by finite at 12:43 AM on October 27, 2007

And I'm sure you're interested in protecting and expanding your job. If you and TBM had your way, software design would be about 30 years behind where it is today.

Above all, I'm interested in giving sound advice. If I told my clients that "software can't be patented in the European Union", or that there is a huge difference if they do not "intentionally" infringe, I'd be giving them extremely unsound advice and would probably be quickly and deservedly sued for malpractice.

Note that neither tbm nor me have argued whether current patent law is a good thing or not. Both of us have merely pointed out what it is, not what we'd like it to be.

If the OS movement asked me for advice, what would I tell them? Well:

a) Build up a good defensive portfolio against your competitors; and
b) Keep a close watch on patent applications that could endanger your business model and be prepared to contest them.

Turns out that that is exactly what the large companies involved with OS (including both Novell and Red Hat) are doing through the Open Innovation Network.

BTW, "wilfull infringement" is relevant in the US because it leads to treble damages. This isn't the case elsewhere, where damage awards are generally lower anyway. In any case, the biggest problem you may have is not the damages, but being unable to find a workaround so as to stop infringing. Just ask Vonage.
posted by Skeptic at 8:31 AM on October 27, 2007

I wondered how quickly someone would point at MS. Maybe off topic a bit but has MS ever sued anyone for patent infringement? I read of these patent suits all the time but cannot recall when MS has been the plaintiff. It's not like their portfolio is insignificant or anything.
posted by bz at 6:49 PM on October 27, 2007