A Holiday Gift

I’m sure many of you spent the month of December looking for something significant for that special GC in your life. Well, you can forget about the wine, chocolate and fruit baskets. Last week, the justices of the U.S. Court of Appeals for the Federal Circuit provided the perfect gift for GCs of companies facing increased litigation with patent trolls. It came in the form of a decision in the case of In Re TS Tech USA. (A PDF of the ruling is here.) This decision increases the likelihood that courts will grant requests for a change in venue in well known “plaintiff friendly” jurisdictions.

It’s a nice way to begin the year. Although, on reflection, a good bottle of wine is always appreciated.

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“Stumbling”

I travel a fair amount. And, I’m an insomniac. It’s not an ideal combination. Often, I find myself in a hotel room in another country still awake in the early a.m. having finished all the books I’ve carried with me. Jet lag, work stress and unfamiliar surroundings are not conducive to a good night’s sleep. (Bill Murray nailed the feeling in “Lost in Translation”.)

For a time, I would spend those nocturnal hours watching YouTube videos or randomly searching websites for something of interest. The results were usually little more captivating than the rerun of McCloud (dubbed in German) that I watched during my last trip to Munich. As Ian Hurt once said, “There’s a statistical theory that if you gave a million monkeys typewriters and set them to work, they’d eventually come up with the complete works of Shakespeare. Thanks to the Internet, we now know this isn’t true.”

Recently, I installed StumbleUpon and it’s greatly improved my web-surfing experience. It’s a free download that employs a personal preference system for websites similar to what NetFlix uses for DVDs and Amazon for books. It’s both effective and addictive.

Here are some examples of what I “stumbled upon” during a recent trip:

– A “smack” of jellyfish – who knew?

– Instruction on how to convert my motorcycle to electric.

U.S. electoral maps (where was this when I took polysci)?

– Interesting “art”.

– Incredible photographs of space.

– The opportunity to brush up on my Latin.

– An excellent atlas using maps and satellite photography.

And, of course, you never know when you will need a bacon flowchart.

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That first step

Earlier this week, we held our annual intern “meet and greet” at Sun’s campus in Menlo Park. It was a chance for local law students to connect with attorneys in our organization to learn about internship opportunities and, more generally, what it’s like to work here. We had a great turnout with more than fifty students from a number of regional law schools. All of them were bright, energetic, interesting – and interested.

At the beginning of the event, I spoke for a few minutes about my career and the value of internships. I pointed out that few people are fortunate enough to identify early in life what their “perfect job” will be. Instead, for most of us, career paths are really nothing more than a process of elimination. You explore, try new opportunities and leave others until (hopefully) you find the right role. For me that journey has been a meandering path through several law firms, two companies (one of them, Sun – twice) and multiple areas of legal practice.

I arrived home last evening and with a glass of wine in hand, sat down and read our town’s local newspaper. On the second page, I found an article noting that Pat O’Laughlin, our former mayor, had passed away as the result of a rare disease called spinal arachnoiditis. Besides serving as mayor, Pat was also a very well known civil litigator in the San Jose area. Just about every local judge and attorney knew Pat and admired him for his intellect and tenacity in the courtroom. But it was Pat’s wit and frequently displayed humor that were his hallmark.

In 1984, it was Pat who gave me my start as an attorney. At that time, I had just graduated from law school and passed the bar exam. I had little concept of what it meant to be a litigator, but Pat took a chance and hired me. Over the following three years, he trained me and gave me increasingly more complex cases to handle. He clearly had far more confidence in my abilities than I did at that early stage.

It has been more than fifteen years since I last saw him. Ultimately, I realized that litigation was not what I wanted for my professional career and I left to a position with another firm. And from there… like I said, a meandering path to where I am today.

Lao-tzu famously said, “A journey begins with a single step.” In many careers that first step is the most important. But, equally important is having a person who helps you take it.

Thank you, Pat. You will be missed by many.

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Seeking a bit of white space

Earnings announcement, board meetings, stockholder meeting and the continued melt down of global economic markets. All in all, it’s been a stressful few weeks. So, when a few friends offered the chance for a weekend of camping and hiking in Yosemite Valley, I happily accepted.

Yosemite Valley is always wonderful. But at this time of year, it is at its most beautiful. The leaves of the black oaks have turned shades varying from crimson to mustard and color the air with every breeze. In the background, the majestic icons of the valley – El Cap, Half Dome, Glacier Point and Royal Arches, all watch silently. I’m still astounded to meet residents of California who have never visited this sublime geologic wonder.

The hike itself was grueling. There was no trail to follow and we had to move at a good pace to avoid navigating in the dark – or worse yet, being included in the next edition of this.

Our starting point was Olmstead Point off of Tioga Road. From there we descended (and more than occasionally – stumbled) down Tenaya Canyon to the valley floor. Along the more than ten mile route we discovered the engine of a plane that had crashed in the late 1950s; had an encounter (thankfully, a friendly one) with a large black bear; enjoyed the adrenaline of a few rappels and the refreshment of a chilly swim in the Tenaya river. In this environment, it is impossible to think about work. Or, the economy.

Now, at the office a week later, my legs remain in pain and the blisters on my feet have not yet healed. But each time I experience a moment of stress, I reach down and touch my still aching legs. When I do, I’m transported back to Yosemite and find a moment of repose.

(Photographs courtesy of Rene Schaub)

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Computer Professional Exemption

Last month, as part of the resolution of the impasse over the California state budget, AB10 was passed and signed into law by Governor Schwarzenegger. This piece of legislation amends California Labor Code Section 515.5, known as the “Computer Professional” exemption to state overtime laws.

Prior to this amendment, Section 515.5 required that “computer professionals” receive at least $36 per hour in order to be exempt from overtime payments. While the original legislation may have had a positive intent, the result was not because in order to qualify for this exemption computer professionals were required to track their hours to verify that they received the hourly minimum.

AB10 was the subject of a great deal of lobbying prior to its passage, with the plaintiff’s bar arguing that it would be the first step in the elimination of all hourly wage requirements. Others claimed the existing legislation was necessary to ensure that computer professionals were paid a living wage. The reality is very different.

AB10 is not about paying fair wages. Qualified computer engineers remain in high demand. This market demand is reflected in the fact that most computer professionals receive an annual salary that far exceeds the $75,000 minimum level set forth in Sec. 515.5 and includes stock options, benefits and other perquisites. And it should be noted that California’s minimum level remains more than three times what is required in other states where the federal standard applies.

AB10 is important to keeping jobs in California. Technology companies consistently rank among the top employers and best places to work in the state. But, we are in an era of increasing globalization where employment opportunities are moving to other states and countries. Some of the most attractive and portable jobs are those of the computer industry. The passage of AB10 brings California law more in line with other states by making the computer professional exemption a true exemption that can be relied on by companies. It will also help reduce the tsunami of wage hour class actions that arose under the previous legislation which resulted in companies paying litigation costs rather than investing in job creation.

In a global economy, California can not afford to be an island if it desires to keep taxpaying jobs for its citizens. Congratulations to the governor and California legislature. AB10 is a positive thing for its technology employers and employees, and for California.

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Just one more thing.

I promise, I do have other subjects to write about; however, immediately after my last blog we received some additional news of interest concerning the NetApp litigation.

After NetApp filed its lawsuit to halt adoption of Sun’s open source ZFS technology, we responded by filing reexamination requests with the PTO citing the extensive amount of highly relevant prior art that was not disclosed or considered when NetApp originally filed its patents. The patent office clearly agreed with the relevance of this prior art, as demonstrated by its rejection of the claims across all of the reexaminations. Of these patents, three have been described by NetApp as “core” (US Patent Nos. 6,857,001; 6,892,211; and 5,819,292). Here’s the current status of each of them:

NetApp Patent No. 6,857,001 – The PTO rejected all 63 claims of the patent based on 10 prior art references provided by Sun. In addition, the trial court has agreed to remove that patent from the litigation for now pending the final reexamination by the PTO.

NetApp Patent No. 6,892,211 – The PTO rejected all 24 claims of the patent based on 12 prior art references provided by Sun. There is currently a request pending before the trial judge to stay this patent from the litigation as well.

NetApp Patent No. 5,819,292 – And late last week, we were informed that the PTO has rejected all of the asserted claims of this patent relying on at least two separate prior art references out of the many provided by Sun. (The examiner felt that to consider the other references would be “redundant”.)

Some may recall that the ‘292 (“WAFL” technology) patent was what NetApp’s founder, David Hitz, originally highlighted on his blog as being innovative and infringed by ZFS. However, what this litigation is proving is what we have known all along – ZFS is a fundamentally different, game changing technology.

It’s the same thing we hear from our customers.

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More on the NetApp litigation

I recently read Judge Laporte’s Order Construing Claims in the NetApp v. Sun litigation. Judge Laporte is the United States Magistrate Judge who is hearing this case in the Federal Court for the Northern District of California. Reading the order was again a reminder of the breadth and diversity of cases that judges are called to consider. These include everything from antitrust, personal injury and employment lawsuits, to cases involving conflicts over ERISA and some even more unique disputes.

Which makes it all the more impressive when a judge is also able to understand and render a decision relating to highly complex technologies in a patent case as part of a Markman hearing. For those who don’t practice in this area, a Markman hearing (taking its name from the case of Markman v. Westview Instruments, Inc.) is a pre-trial procedure in which each party presents briefs, tutorials and expert witness testimony to establish the meaning of key terms in disputed patents. Aside from the actual trial, the Markman hearing is the most important part of a patent infringement litigation.

On August 27, 2008, the Markman hearing was held before Judge Laporte. In dispute were fourteen phrases in seven patents (four asserted by Sun and three by NetApp) that required the court to determine the meaning of terms like “Domain Name”, “Non-volatile Storage Means” and “Root Inode”, among others. Given the complexity, we were impressed when only two weeks later, the judge issued her order.

And, we were very pleased.

In summary, the court agreed with Sun’s interpretation on six of the disputed terms (two of which the court adopted with slight modification) and with NetApp on one. As to the remaining terms, the court either formulated its own interpretation or requested that the parties propose a further construction (i.e. definition). If you want to read the Order from the Markman hearing you can find it here.

Most significantly, the Court found each of the asserted claims in NetApp’s 7,200,715 patent relating to RAID technology to be “indefinite” – meaning that someone with experience in this area of technology could not understand the limits of the claimed invention. With regard to NetApp’s ‘715 patent, the court agreed with Sun’s position that the claims of the patent are flatly inconsistent with and impossible under the teaching of the patent specification. In effect, unless NetApp appeals and this finding is reversed, the ‘715 patent is effectively invalidated in this case and against others in the future.

In addition, the Court’s findings on the terms “server identification data”, “domain name”, “portion of a communication” “element of a communication” and “completing a write operation within a local processing node” further strengthen our position that the processors, network interface and systems management software used across NetApp’s product line infringe Sun’s patents.

Meanwhile ZFS and OpenStorage continue to gain momentum.

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