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Sun wants patent infringement lawsuits between it and rival Network Appliance (NetApp) to be litigated in California rather than a district court in Texas with a reputation for favouring patent plaintiffs.

Sun has filed a motion in US District Court in Northern California, in San Jose, to consolidate there the lawsuits filed by NetApp against Sun in the Eastern District of Texas on September 5 and a countersuit filed by Sun.

Sun Microsystems, based in Santa Clara, is only about 10 miles away from NetApp in neighbouring Sunnyvale, so it is more practical for the cases to be litigated in California, says Mike Dillon, Sun’s general counsel. Lawyers, corporate executives, other witnesses and legal documents likely to be presented as evidence are all there, Dillon notes.

"From both a judicial and economic standpoint, it makes much more sense for the case to be in California," he wrote.

But the Eastern District Court in Texas also has developed a reputation for litigation brought by so-called patent trolls. A patent-reform bill to curb some patent-suit abuses is before the US Congress.

Sun has had to defend itself in Eastern Texas on a number of patent cases, as have other tech companies, Dillon says.

"One of the current venues of choice, and there are several, is a court located in the small town of Marshall, Texas, where over 88% of jury verdicts favour the plaintiff," Dillon says.

The latest rounds of lawsuits began September 5 with a Net App suit filed against Sun alleging Sun’s Zettabyte File System (ZFS) infringed on seven NetApp patents for its Write Anywhere File Layout and RAID technology. NetApp says Sun infringed its patents when it released ZFS in 2005 and then released code for it under an open source licence this year, as Sun has done with much of its other software.

Sun countersued on October 25 against the entire NetApp product line, seeking both an injunction and monetary damages. Sun also filed further infringement claims against NetApp in the filing in San Jose.

The NetApp suit followed negotiations dating to 2004, when StorageTek accused NetApp of violating its patents for storage file-management software. StorageTek was subsequently acquired in 2005 by Sun, which continued to press the patent infringement allegations against NetApp. Negotiations between the companies eventually led to NetApp’s claim that Sun uses NetApp-patented technology in ZFS.

NetApp’s founder and executive vice-president, Dave Hitz, has described Sun’s countersuit allegations as "exactly the sort of broad but vague threat that gets people so frustrated with patent litigation".