No we can't. The GPL ZFS bits don't include the various methods that
would violate the patent so there is no grant. I've several times asked
Sun to simply give permission and they don't even answer. I can only read
the Sun motiviation one way - they want to look open but know that ZFS is
about the only thing that might save Solaris as a product in the data
centre so are not truely prepared to let Linus use it.
This is now further complicated by the fact Sun and NetApp are in
litigation so ZFS is basically "toxic" for the moment and we'd need
permission from both sets of patent holders to proceed.