For those of you still following the NetApp / Sun soap opera with popcorn at the ready, here’s the latest: the whole case, including all suits and counter-suits between the two parties, will be heard not in Texas, where NetApp originally filed the suit, but by a “mutually agreed-upon judge” in Southern California, where both companies are based. The first matter before that judge will be a re-examination request on the patents NetApp claims Sun violated.
Here’s where blogs come in to play again, as they have, frequently and at times weirdly, throughout this case. According to a letter Sun sent to members of the press today:
Reexams have been filed on the NetApp WAFL patents that purportedly cover concepts such as copy on write, snapshot and writable snapshot. There is a significant amount of prior art describing this technology that was not in front of the US patent office when it first examined these patents. In just one example, the early innovation by Mendel Rosenblum and John Ousterhout on Log Structured File Systems, applauded in a NetApp blog: http://blogs.netapp.com/dave/2007/09/vmwares-founder.html as beinginspirational to the founders, was not considered by the patent office in the examination of the NetApp patents.
With this notice, Sun is hoping we’ll think they have NetApp right where they want them. But if there’s one irrefutable truth that’s come out of this whole saga so far, it’s that outside the offices of a few key people, nobody really knows what’s going on in this feud.
I will say, however, that the change of venue does seem like a concession on NetApp’s part, one that Sun, of course, isn’t letting slip by: “We are pleased that Network Appliance agreed to Sun’s request and retracted its imprudent choice of venue for this litigation.” (Prior to the change in venue, NetApp had pointed out that a number of cases like this one have been tried in Texas, including IBM’s suit against Amazon, regardless of where the parties in the suits have been based.)
Who knows what the new year will hold in store for these two. But we suggest stocking up on your Orville Redenbacher’s over the holidays.