The Sun and NetApp Ordeal

Read Miguel’s post about the patent suit between Sun and NetApp. I guess both parties are carefully avoiding stating something which is outright lies so instead they tiptoe around the issue a bit.

Here is my guess of how things went down:

Step 1: NetApps first approached StorageTek behind the cover of a third party intermediary seeking to purchase STK patents. This is what Jonathan mentions in his blog and nothing in the blog entry of the NetApp CEO contradicts this, it just omits it.
Step 2: Sun when being asked about the patent purchase turns around and says ‘sorry not for sale, but you can license.’ Sun having talked to the third party mentioned they make this offer directly to NetApp. So As the NetApp’s CEO says, Sun contacted them with a list of patent (the same list NetApp had asked to purchase) and said they where available for licensing.
Step 3: NetApp realize that their patent purchase request has backfired a bit and starts looking for a way out. Their first solution is to look through their own patent portfolio probably hoping to find something to cross license with Sun. (Or if they got stupid with greed, they tried to both get Sun to agree that they where not infringing on Sun’s patents and at the same time demand patent fee payment for their own).
Step 4: Licensing lawyers/people at Sun are faced with what is more than a ‘standard’ patent licensing agreement and for some reason tries to just drop it instead of dealing with it. (A scarily common event in many big companies).
Step 5: NetApp either due to worry about future legal action from Sun or due to greed decide that a request for a summary judgement about the validity of the Sun patents (which they originally wanted to buy) and a countersuit would be the best way forward.
Step 6: NetApp CEO presents his view in blog post in the hope to not get to much bad reactions from the open source/free software community.

Step 7: Sun CEO replies in his own blog.

All the above is just guesswork by me of course for what happened, but these set of events would not contradict either of the two versions of what happened.

My guess is that NetApp just got greedy in this process and starting behaving stupidly. Probably in the end they make the same fatal mistake that SCO did, they assumed the cost of a lawsuit is what you pay your lawyers. Instead the real cost of a lawsuit will often be the collateral damage it will inflict on your business. NetApp might end up experiencing the same thing that SCO did (although on a smaller scale), that suddenly their customer base wants to avoid doing business with them as they are seen as a patent troll and a enemy of open source software.

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