Sun plans to countersue NetApp

Updated at 2:31 p.m. PDT: Sun Microsystems plans to countersue Network Appliance later this week, Chief Executive Jonathan Schwartz said Wednesday, a suit that will include a request to remove the company's products from the market.

Schwartz said on his blog that he has "no interest whatever in suing them" and therefore "reached out" to Chief Executive Dan Warmenhoven. But, he said, NetApp's demands--that Sun "retract" its ZFS file system from open-source community and restrict its use to computing and not storage devices--can't be met.

Consequently, "Later this week, we're going to use our defensive portfolio to respond to Network Appliance, filing a comprehensive reciprocal suit. As a part of this suit, we are requesting a permanent injunction to remove all of their filer products from the marketplace, and are examining the original NFS license--on which Network Appliance was started," Schwartz said.

NetApp wasn't immediately available for comment. But don't be surprised if there is some: founder Dave Hitz has been outspoken about the lawsuit on his blog.

Sun spokeswoman Dana Lengkeek said Sun has a Friday deadline to respond to NetApp's suit, which accused Sun of violating seven patents.

Since ZFS is part of Sun's open-source Solaris work, there are open-source ramifications to the case. And Schwartz is trying to use the connection to curry favor with the vocal and increasingly influential collaborative programming movement.

"We will be going after sizable monetary damages. And I am committing that Sun will donate half of those proceeds to the leading institutions promoting free software and patent reform," Schwartz said, pointing specifically to the Software Freedom Law Center and the Peer to Patent Project. "Whatever's left over will fuel a venture fund fostering innovation in the free software community."

Open-source software may be copied, modified and redistributed freely. One company interested in ZFS is Apple, which is including ZFS as an option in Leopard, the Mac OS X 10.5 update due Friday.

Apple need not worry about NetApp, Schwartz said.

"Apple is including ZFS in their upcoming Leopard OS X release. This is happening without any payment to Sun," Schwartz said. "Under the license, we've waived all rights to sue them for any of the patents or copyright associated with ZFS. We've let Apple know we will use our patent portfolio to protect them and the Mac ZFS community from NetApp--with or without a commercial relationship to Sun."