According to a blog posted today by Sun’s general counsel Mike Dillon, at least one of the patent-infringment counts is off the table in court, after the US Patent Office (PTO) granted a re-examination request filed by Sun.
With regard to one NetApp patent, the ‘001 patent, the PTO has issued a first action rejecting all the claims of this patent. Based on the positive response we received from the PTO, we asked the trial court to stay a portion of the litigation. Obviously, it doesn’t make sense to go through the expense and time of litigating a patent in court if the PTO is likely to find it invalid. The court agreed with our request and at least one NetApp patent has thus far been removed from the litigation.
NetApp started all this by filing its ZFS lawsuit against Sun with great fanfare last September, but Sun has been the aggressor ever since. Sun countersued NetApp’s original suit and accused NetApp of violating Sun’s patents. It tacked on another lawsuit in March alleging patent infringement related to storage management technology NetApp acquired when it bought Onaro in January.
This is the first of six reexamination requests filed by Sun. Dillon said Sun expects to hear more throughout the year.
NetApp refused comment on the latest developments and a survey of NetApp’s many executive blogs hasn’t turned up any further discussion, though some of Dave Hitz’s testimony is now being made available by Sun online.