Analysis The "Participation Age" has revealed a brand new aspect to patent lawsuits - Executive Spew Dot Oh.
Far more interesting than any of the IP claims traded between Network Appliance and Sun Microsystems is the battle being waged between NetApp founder Dave Hitz and Sun Microsystems CEO Jonathan Schwartz. The two executives have decided to make a spectacle of their gripes, trading barbs via their blogs. Lawyers for both sides must feel revulsion, resentment and fear every time one of these loquacious nerds fires up his browser.
On the practical front, the executive disclosures seem to have brought us no closer to the truth. Hitz has backed up claims that Sun's Zettabyte File System (ZFS) infringes on NetApp patents. In addition, he's effectively painted Sun as a type of patent bully that tries to pump money out of rivals by abusing its IP portfolio. Meanwhile, Schwartz has delivered a solid time line of events that seems to prove NetApp actually led the bullying. And, of course, Schwartz stands by Sun's claims not only that ZFS does not violate NetApp patents but also that NetApp's most popular software violates Sun patents.
The executive spew - and we believe it's the first of its kind - simply mimics the turgid filings of lawyers in these types of arguments but with a bit more colorful language.
Given that the blogging back-and-forth adds no muscle to the actual dispute between the companies, we're surprised that Hitz has chosen to continue on this quest given the obvious public relations disaster that NetApp faces.
NetApp wants to win this case, so it filed the original lawsuit in the IP troll-friendly courts of the Eastern District of Texas. Right away, that puts NetApp's claims in a negative light. Why rumble in a suspect Texas court when the two companies involved are located just a few miles from each other in Northern California? If you're a practical, business-minded type, you can't fault NetApp for its court selection. Still, the choice smacks of NetApp desiring bias rather than objectivity to judge its claims.
Then you have Sun playing the open source card against NetApp's proprietary code stance.
As Hitz rightly argues, there's no reason to give Sun any credit for citing that ZFS has been open sourced if Sun is in fact stealing NetApps' intellectual property. But Hitz seems to ignore how virulent and vocal the open source "community" can be.
Just compare the comments sections from the executives' respective blogs - Hitz vs. Schwartz - and you'll find far more people siding with Schwartz. The Sun CEO is championed as an open source hero, while Hitz receives comments such as "Letter to NetApp employees: Don't work for this idiot."
To that commenter's point, Schwart'z blog posts mostly rely on rhetoric surrounding the merits of open source software and the expensive, proprietary nature of NetApp's products. Schwartz also finds plenty of time to plug Sun's storage gear. Hitz, meanwhile, issues a not so pleasant post about how NetApp employees need not worry about keeping their jobs just because Sun has countersued NetApp seeking to stop shipments of all its major products. Hitz tries to reassure his staff and customers, although just talking about NetApp's demise - however unlikely - feels like an awful thing for an executive to dwell on in public.
The simple reality that Hitz needs to face here is that Schwartz, who is very talented in the art of rhetoric (sometimes to a fault), has more persuasive material to work with in the court of public opinion. No matter how hard it tries, NetApp comes off as a seller of high-priced storage gear doing everything it can to keep selling high-priced gear in the face of a disruptive technology. (We wonder if Hitz is perusing his own "Recommended Reading" list, which promotes The Innovator's Dilemma.) Hitz only adds to these impressions by piling it on via his blog.
It may seem like a novel, even good idea for executives to engage in a public discourse around these types of patent disputes. Ultimately, however, the "he said, she said" result is just a webby replay of the lawyers' arguments.
Schwartz can perhaps argue that he has something to gain from the exercise in that he was the first major CEO blogger and a driving force for getting blogs and web sites to count as forums for public companies to make material disclosures. He's a blogging pioneer, if you care, and can now claim another first in the legal spat realm.
Hitz has nothing of this sort to gain and so much more to lose from a public relations standpoint. NetApp may in fact have the stronger legal claims, but it will take years to hash that out in a backwoods court. In the meantime, Hitz must talk about NetApp not going out of business, not firing its employees, not scaring off customers and not being a patent troll.
Why be a slave to the "Participation Age" when it's damaging to your company? ®