Free Status Report - District Court of California - California

Case 3:07-cv-06053-EDL

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MARK D. FOWLER, Bar No. 124235 [email protected] CLAYTON THOMPSON (Admitted Pro Hac Vice) [email protected] DAVID ALBERTI, Bar No. 220625 [email protected] CHRISTINE K. CORBETT, Bar No. 209128 [email protected] YAKOV M. ZOLOTOREV, Bar No. 224260 [email protected] CARRIE L. WILLIAMSON, Bar No. 230873 [email protected] DLA PIPER US LLP 2000 University Avenue East Palo Alto, CA 94303-2214 Tel: 650.833.2000 Fax: 650.833.2001 Attorneys for Plaintiff-Counterclaim Defendant, Sun Microsystems, Inc. UNITED STATES DISTRICT COURT

13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN FRANCISCO DIVISION 15 16 17 18 19 20 21 22 23 24 25 26 27
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SUN MICROSYSTEMS, INC. Plaintiff-Counterclaim Defendant, v. NETWORK APPLIANCE, INC. Defendant-Counterclaim Plaintiff.

CASE NO. C-07-05488-EDL JOINT REPORT REGARDING 14 PROPOSED TERMS FOR CLAIM CONSTRUCTION

Pursuant to the Court's July 25, 2008, Order Following Case Management Conference, NetApp, Inc. ("NetApp") and Sun Microsystems, Inc. ("Sun") jointly submit this Joint Report Regarding 14 Proposed Terms for Claim Construction.1 Additionally, pursuant to the Court's Order directing the parties to narrow the number of patents-in-suit to four NetApp patents and five Sun patents, the parties have each identified their respective patents. The NetApp patents for the first wave of this case are United States Patent Nos. 6,574,591, 6,868,417, 7,107,385 and
The Court had requested the parties to submit fifteen priority terms. Because there is no overlap of terms between the parties, the parties agreed to submit an even number of terms.

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7,313,720. The Sun patents for the first wave of this case are United States Patent Nos. 5,124,987, 5,430,855, 6,421,787, 5,632,012 and 5,721,937. In addition to the fourteen terms submitted herewith, the parties note that there are other continuing claim construction disputes concerning the first wave of patents. For example, for each of Sun's five patents and NetApp's four patents, there is at least one disputed claim term that is not included in this Report. In addition the parties dispute the function and/or corresponding structure for a number of means-plus-function terms in the patents-in-suit. The parties believe that the Court may need to address additional claim construction disputes before infringement claims concerning the nine patents in the first wave can proceed through summary judgment or trial. Below please find the parties' list of fourteen terms, in order of priority. No. Term Party Which Proffers Term Sun Patent Statement Of Why Term Needs Construction

1.

"virtual disk(s)/ vdisk(s)"

United States Patent No. 7,107,385

If Sun's proposed construction is adopted, Sun intends to file a motion for summary judgment of non-infringement as to all asserted claims. The accused products do not include this limitation. For example, and without limitation, the accused instrumentality (ZFS) does not maintain a storage object within a file system encapsulated as a lun inode pointing to at least one stream inode that is managed as a regular file emulating a physical disk.

2.

"first available memory space"

NetApp

'987 patent

As used in the claims, this term requires that data can only be written to a logical track (i.e., "memory space") that is entirely

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empty. The accused products can and do write to logical tracks that already contain data. As a result, if the Court adopts NetApp's construction, NetApp expects there will be a strong likelihood of summary judgment of non-infringement as to all accused products. 3. "increas[ed/ing] a number of persistent consistency point images" Sun United States Patent No. 7,313,720 This phrase is indefinite under section 112, ¶ 2 because it is unclear and fails to set forth the subject matter which applicants regard as their invention. Because this phrase is in all of the asserted independent claims, all asserted claims are invalid. As used in the claims, this term requires a structure that runs the disk scrubbing process only on partitions that have been preselected as "dedicated partitions" and never on partitions that are "free." The accused products contain no structure that runs a scrubbing process only on partitions that have been pre-selected as "dedicated partitions." If the Court adopts NetApp's construction, NetApp expects there will be a strong likelihood of summary judgment of noninfringement as to all accused products. These phrases are indefinite under section 112, ¶ 2 because it is unclear and fails to set forth the subject matter which applicants regard as their invention. Because this phrase is in the one asserted independent claim, all asserted claims are invalid.

4.

"means responsive to said reading of said memory controller for periodically verifying the integrity of data currently stored in each of said identified dedicated partitions"

NetApp

'012 patent

5.

"mode operations"/"mode Sun layer operations"

United States Patent No. 6,868,417

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Even if the Court should determine that the claims are not indefinite and instead adopts Sun's alternate construction, Sun intends to file a motion for summary judgment of noninfringement as to all asserted claims. The accused products do not include this limitation. For example, and without limitation, the accused instrumentalities do not include operations on inodes, where an inode is a data structure that points to the data blocks of a file and contains status information about the file. 6. active link between said active nodes NetApp '787 patent As used in the claims, this term requires that each network link have at least two pertinent characteristics: a) they must have either a point-to-point or multi-drop configuration, and b) they must be node-to-node, rather than node-to-disks. However, the network links in NetApp's products do not have these characteristics, because they use separate switches. If the Court adopts NetApp's proposed construction, NetApp expects there will be a strong likelihood of partial summary judgment of non-infringement as to all products. If Sun's proposed construction is adopted, Sun intends to file a motion for summary judgment of non-infringement as to all asserted claims. The accused products do not include this limitation. For example, and without limitation, the accused instrumentality -4WEST\21489705.1

7.

"file system information (fsinfo) block"

Sun

United States Patent No. 7,313,720

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(ZFS) does not maintain a block located at a fixed location on disk describing the volume, including the size of the volume, volume level options and language. 8. means, responsive to the receipt of a stream of data records from said associated data processor, for writing said received stream of data records in available memory space in one of said disk drives NetApp '855 patent As used in the claims, this term requires a structure that responds to the receipt of a stream of data records by writing that stream of data records in a single disk drive. The accused products contain no structure that would require a stream of data records to be stored on a single disk drive. If the Court adopts NetApp's construction, NetApp expects there will be a strong likelihood of summary judgment of non-infringement as to all accused products. If Sun's proposed construction is adopted, Sun intends to file a motion for summary judgment of non-infringement as to all asserted claims. The accused products do not include this limitation. For example, and without limitation, the accused instrumentality (ZFS) does not include a storage layer that is the software level immediately below and coupled to block and file level servers and above the management layer. 10. means for reading data in each of said identified dedicated partitions NetApp '012 patent As used in the claims, this term requires a structure that reads data to commence a scrubbing process only in those partitions that have been previously identified as "dedicated". The accused products contain no

9.

"storage layer underlying the block and file level servers"

Sun

United States Patent No. 6,868,417

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structure that reads data only from partitions that have been previously identified as "dedicated." If the Court adopts NetApp's construction, NetApp expects there will be a strong likelihood of summary judgment of non-infringement as to all accused products. 11. "swizzl[e/ing] said BN pointers" Sun United States Patent No. 6,574,591 If Sun's proposed construction is adopted, Sun intends to file a motion for summary judgment of non-infringement as to all asserted claims. The accused products do not include this limitation. For example, without limitation, the accused instrumentality (ZFS) does not transfer storage blocks and does not remap old BN pointers in storage blocks transferred in the image stream to new BN pointers. 12. first available one of said logical tracks NetApp '987 patent As used in the claims, this term requires that data can only be written to a logical track that is entirely empty. The accused products can and do write to logical tracks that already contain data. As a result, if the Court adopts NetApp's construction, NetApp expects there will be a strong likelihood of summary judgment of noninfringement as to all accused products. If Sun's proposed construction is adopted, Sun intends to file a motion for summary judgment of non-infringement as to all asserted claims,. The accused products do not -6WEST\21489705.1

13.

"performs identical data Sun management operations upon the underlying block level and file level data"

United States Patent No. 6,868,417

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include this limitation. For example, and without limitation, the accused instrumentality (ZFS) does not provide each and every data management operation that is performed on block level data is performed on file level data and each and every data management operation that is performed on file level data is performed on block level data. 14. communication link NetApp '787 patent As used in the claims, this term requires either a point-to-point link or a multi-drop link. NetApp's products use separate switches. If the Court adopts NetApp's proposed construction, NetApp expects there will be a strong likelihood of partial summary judgment of non-infringement as to all products.

Dated: August 7, 2008 DLA PIPER US LLP By /s/ Christine K. Corbett MARK D. FOWLER DAVID ALBERTI CHRISTINE K. CORBETT YAKOV M. ZOLOTOREV CARRIE L. WILLIAMSON Attorneys for Sun Microsystems, Inc.

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Dated: August 7, 2008 WEIL, GOTSHAL & MANGES LLP /s/ Jill J. Ho MATTHEW D. POWERS EDWARD R. REINES JEFFREY G. HOMRIG JILL J. HO Attorneys for NetApp, Inc.

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JOINT REPORT RE: 15 PROPOSED TERMS FOR CLAIM CONSTRUCTION ­ USDC CASE NO. C-07-05488 EDL