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Is Fighting Your Patent Case in Public Really a Good Idea?
In blog posts, Sun Microsystems' GC and CEO wage war of words with NetApp co-founder over a patent dispute currently in court
The Recorder
October 31, 2007
The millions of blogs littering the Internet prove that everyone has an opinion. But you won't often find the general counsel of a major tech company shooting his mouth off about ongoing patent litigation.
In recent weeks, Sun Microsystems GC Mike Dillon and CEO Jonathan Schwartz have been blogging about their company's IP battle with Network Appliances, trading barbs with NetApp co-founder Dave Hitz, who has been commenting on the case on his own blog.
"It is something that is a little bit unusual," said Stephen Yu, GC at Macrovision Corp. He said he hadn't seen the blogs. "Typically, companies try to avoid making comments on litigation because the remarks could be used as evidence down the road."
Edward Reines, a Weil, Gotshal & Manges partner representing NetApp, agreed that the blogging could have serious consequences -- for the Sun execs.
"Having a general counsel blog in any matter exposes the risk of a privilege waiver, and having the CEO blog exposes him to deposition where you might otherwise have argued it wasn't relevant to the litigation," Reines said.
He added that Hitz -- an engineer who serves as executive vice president -- merely "felt he needed to explain to the tech community why he was doing what he was doing."
NetApp sued Sun for patent infringement in September in the Eastern District of Texas. Sun countersued, claiming patent infringement and unfair competition, on Monday in the Northern District of California.
NetApp's lawsuit claims that Sun's ZFS software, which it distributes free to developers, infringes on some of the company's patents. Industry observers say that when it comes to controversial open source issues, it makes sense that parties would try to rally support by blogging out in the open.
"I wouldn't advise a client to publicly talk about litigation," said George Newcombe, a litigator who heads Simpson Thacher & Bartlett's Palo Alto, Calif., office. "On the other hand, these blogs had very little to do with the litigation -- they were directed at the tech community."
The open source community, which advocates free use and development, often views patents with disdain. Observers say the two Silicon Valley companies using open source don't want to seem like they embrace patent litigation.
"Traditionally, a company protected itself against patent suits by building a patent portfolio -- like mutually assured destruction," said Heather Meeker, a Greenberg Traurig IP transactions lawyer who's written about open source. But in general, she explained, "large players in the open source space don't want to be viewed as making the first strike in a patent war. Even when they invoke their defensive portfolios, they have to explain their actions to the open source community."
LET THE SNIPING BEGIN
Fear of looking like the patent bully may be why Sun and NetApp blame each other for starting the fight. Hitz claims that a year-and-a-half ago, Sun's lawyers told his company that NetApp was infringing on Sun's patents and asked for "lots of money."
Schwartz fired back that Sun "did not approach NetApp about licensing any of Sun's patents and never filed complaints against NetApp or demanded anything."
Then Hitz posted a letter from Sun's lawyers on his blog to prove his point. "He says Sun never 'demanded anything,'" Hitz wrote, "but here is an e-mail from Sun's lawyers doing exactly that."
"Legal language can be tricky to understand," he added, "but the translation of Sun's letter is, 'You infringe our patents, so pay us $36 million.'"
Sometimes the blog potshots turn a little personal.
"I've been trying to set a higher standard in how companies conduct patent litigation, and I'm disappointed in [Sun CEO] Jonathan [Schwartz] for not doing better than this," sniffs Hitz in an entry on Dave's Blog.
Sun GC Dillon has been equally disdainful of NetApp. "It is disappointing that we have to turn to litigation," Dillon wrote on his The Legal Thing blog. "But, it's clear that NetApp views the open source world much differently than Sun. We've made the transition -- they can't contemplate it."
Neither Schwartz nor Dillon was available for comment Tuesday afternoon, and the company's lawyers at DLA Piper did not return phone calls.
Gary Weiss, who heads Orrick, Herrington & Sutcliffe's IP practice, said he can understand why these executives would be tempted to blog about it, but it's risky. "There's a couple of downsides that you have to steer clear of," he said. Those include staying away from any type of confidential information, of which there is a great deal in patent cases, he said.
IP litigator Newcombe notes that such pitfalls are hard to avoid. As the old saying goes, anything that you say can be held against you.
"Once you start talking about what happened, you're creating a document that could be used as ammunition by the other side," he said.
