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Patent Litigation: The Straight Truth

Read Previous March 2016 blog on Litigation

Read Updated September 2016 blog on Litigation

Over the last few weeks, EMC has been trying to convince customers and partners that they have won their patent infringement suit against Pure and that this is a major issue for our business. But EMC’s posturing is simply misleading.

Let’s clear the air and set the record straight.

I’ll start with the basics. EMC claims they won the lawsuit, and that we infringe their de-dupe technology. EMC’s complaint alleged that Pure infringed five patents. Before trial, EMC dropped one patent from the case, and the judge threw out another; the judge also found we infringed one patent on de-duplication – the so-called ‘015 patent. The jury found no infringement on the two remaining patents, but upheld the validity of the ‘015 patent. The final score: EMC won on one patent before trial…but failed on the other four.

EMC highlights the jury’s award of $14 million in damages against Pure – that is only part of the story. Because the judge found before trial that Pure infringed the ‘015 patent, and the jury upheld the patent validity, the jury was told that they had to award EMC some damages. What EMC fails to mention is that they asked the jury to award $83 million ($60+ million in claimed lost profits and $22+ million in royalties), but the jury rejected EMC’s request, awarding just $14 million in royalty damages.

We intend to ask the court to reconsider the ruling, and if necessary we can appeal from there. If the judge agrees to our request, or if we win on an appeal, we will owe EMC nothing. So for the moment, we are not paying them anything.

Pure has learned that EMC’s salespeople have been telling partners and potential customers that if they buy products from Pure that customers could be negatively impacted by this lawsuit. This is simply not true. Should the jury award on the ‘015 patent be upheld, Pure would pay any damages – neither Pure business partners nor customers would be affected in any way. And that’s where it should end.

This week, EMC filed a motion with the court seeking an injunction to prevent us from selling our FlashArray 300 and FlashArray 400 products.  EMC is overreaching.  In order for an injunction to be awarded, EMC must show, among other things, that it has suffered irreparable harm and that monetary damages are inadequate – and the evidence in the trial clearly supports the opposite.

We’d also note that an upcoming software update will further render moot any claim of ongoing infringement. Unrelated to this lawsuit and consistent with our commitment to innovation, Pure for 18 months has been developing and rigorously testing a new version of our software that will increase performance, reliability, scalability and adaptability to meet changing customer requirements.  This software update includes completely new de-duplication code that improves and replaces the old version – and is non-infringing. EMC’s own expert testified at trial that de-duplication using a technique of the kind employed in Pure’s new code does not infringe the ‘015 patent.

The bottom line is, rather than innovating, EMC is litigating. EMC’s negative sales messaging shows that they are feeling threatened by Pure’s cutting-edge approach to enterprise class storage. They are afraid of losing mind share and market share. They are fighting back in the courtroom, and using FUD in the field to confuse customers and partners. We challenge EMC to put customers first and to stop competing in the courtroom and focus on fairly competing in the marketplace. If this happens, one thing is certain: the customers will ultimately win.

Previous March 2016 blog on Litigation