EMC Sues Hitachi Over Storage Patents

EMC Hitachi

In the first instance, EMC is suing Hitachi Data Systems and parent company Hitachi Ltd. in the U.S. District Court of Massachusetts for infringing on six patents.

In the second instance, EMC filed a complaint with the U.S. International Trade Commission (ITC) to prevent Hitachi from importing into the United States products that use the six patents.

Calls to Hitachi Data Systems were not returned.

According to an EMC time line related to its Symmetrix business, the company has had nine discussions with Hitachi regarding patent infringement between December 1997 and April 2001.

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An EMC spokesman said EMC has been patient but needs to protect itself because it invests about $800 million year in research and development.

Pat Edwards, vice president of sales at Alliance Technology Group, a Hanover, Md.-based solution provider that works with EMC, said infringement is a shame if it is true. "You shouldn't be stealing other people's stuff," he said.

As a result of EMC's new emphasis on the channel, solution providers have recently been given access the vendor's flagship Symmetrix array, and that access includes training on the array and the competition, especially Hitachi, Edwards said.

"Except for the connectivity, everything inside looks the same," Edwards said.

Of the six patents in question, two are related EMC's Symmetrix Remote Data Facility (SRDF), an online, host-independent, mirrored data solution that duplicates production site data on one or more physically separate target Symmetrix systems. The Hitachi Open Remote Copy (HORC) and Hitachi Open Asynchronous Remote Copy (HOARC) software infringe on EMC's SRDF patents, according to EMC.

Two of the patents are related to TimeFinder, which allows the creation in background mode of independently addressable local mirror images of active production volumes that can be used for running parallel tasks. EMC alleges that Hitachi's ShadowImage product infringes on TimeFinder patents.

The other two patents relate to data migration and the storage of mainframe data. Technology covered by the patents are being used illegally in Hitachi's Data Migration Services and in Hitachi microcode, according to EMC.

In its suit against Hitachi, EMC is asking that Hitachi be judged as infringing on its patents and for an accounting of damages resulting from the alleged patent infringement. EMC then will ask for triple the damages "because of the willful and deliberate nature of the defendants' conduct," the complaint stated. EMC also plans to ask for interest on the damages, as well as attorneys' fees and costs.

In its petition to the ITC, EMC seeks an order "permanently excluding from entry into the United States [Hitachi Data Systems' and Hitachi's infringing data storage systems and components thereof," according to the complaint. EMC has production facilities in the United States, while Hitachi does its manufacturing in Japan.

EMC is also asking the ITC for a cease and desist order forcing the Hitachi companies "to discontinue importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation) and soliciting U.S. agents or distributors for [EMC's imported infringing products."

This is not the first time EMC has gone to court for these patents. In October 2000, EMC sued StorageApps for infringement of three of the six patents. Litigation for this case is currently in the discovery phase and no trial data has been set, EMC said.

StorageApps last year was acquired by Hewlett-Packard, which is using technology from StorageApps in its storage virtualization offering. HP is being substituted as the defendant in this case.

While EMC does not list specific Hitachi storage arrays that include technology alleged to infringe on EMC patents, the company does mention in the ITC complaint the HP Surestor XP storage system, which is based on Hitachi core technology.

EMC was HP's main supplier of enterprise storage products on an OEM basis until the two split in a nasty public dispute more than three years ago that led HP to sign an OEM contract to sell Hitachi storage products under the HP name.

The EMC spokesman said the ITC has up to 30 days in which to decide whether to take the EMC/Hitachi case. If it does so, it could be several months before the ITC comes to a decision, he said.

According to Gartner Dataquest, EMC is the top storage management software vendor, with a 30.4 percent share of the market based on new license sales in 2001, up from 28.3 percent share the year before. Hitachi Data systems took the No. 10 spot with a 1.9 percent share, up from a 1.2 percent share in 2000.