About three weeks ago, Sun general counsel Mike Dillon posted about the results of some pre-trial maneuvering between his company and NetApp over the patent-infringement suit brought by NetApp against Sun over ZFS. Dillon was jubilant over the Patent and Trade Office rejecting three of NetApp’s claims, and the trial court agreeing to pull one of those claims off the table for consideration in the suit. Not a decisive victory for Sun, but not necessarily good news for NetApp, which is seeking damages and an injunction against Sun’s distribution of ZFS and other products that it claims infringe on its patents.
NetApp co-founder Dave Hitz put up a brief response to Dillon’s comments this past Sunday on his blog, in which he attempts to introduce some nuance into the PTO aspect of this issue. “The Patent Office has issued a preliminary rejection of claims in 3 of our patents (out of 16),” Hitz writes. “Such a ruling is not unusual for patents being tried for the first time, and there are two ways to resolve the issue.” One of them is to wait for the PTO to make a ruling on each case, which Hitz calls “the slow way.”
The fast way would be to just proceed with the trial, which Hitz pushes for in his post. “Dillon mentioned issues with three patents, but NetApp currently has 16 WAFL patents that we believe apply to ZFS, with more on the way,” he wrote. “We believe that we have a strong case, and we want to get it resolved.”
He says Sun’s push for the slow way of resolving the dispute indicates the weakness of its position in the case: “To me, the best indicator of strength is to look at which party wants to get on with the case (the one with a strong position), and which party consistently drags its feet and tries to delay (the one with the weak position).”
Hitz’s post doesn’t offer much in the way of new raw information on the proceedings.