Barracuda takes on TrendMicro in open-source patent battle

Security vendor Barracuda Networks is rallying support in a patent fight with Trend Micro over its use of the open-source ClamAV application.

Barracuda on Tuesday plans to launch a special Web site where it is calling on the public to file prior art that could help invalidate the disputed Trend Micro patent. The company also is determined to further pursue its legal fight before a district court in California and the U.S. International Trade Commission.

“We will fight the case in district court,” said Dean Drako, chief executive officer for Barracuda Networks. “We filed for the declaratory judgment to end Trend Micro’s continued legal threats against Barracuda Networks for use of the free and open-source ClamAV software.”

At the center of the dispute is Trend Micro’s 5,623,600 patent, which covers “Virus Detection and Removal Apparatus For Computer Networks.” The patent is believed to cover most gateway security products.

The patent case illustrates one of open source’s main weaknesses. For a closed source project, patent claims are typically filed against the original developer, who will typically indemnify its customers. In the case of many open-source project, no indemnification is available. The puts the burden of settling patent claims on the end user or on firms such as Barracuda, which incorporates open-source software in its products.

There are few patent cases against open-source projects. Microsoft has repeatedly argued that Linux distributors should compensate the firm for its intellectual property, and also has promised to refrain from asserting its Linux patent claims in court. Last October, intellectual property licensing firm IP Innovation filed a patent suit against Red Hat and Novell for alleged patent infringements in their Linux distributions. Storage vendor Network Appliance also has drawn Sun Microsystems into a patent fight over Sun’s ZFS file system, which is governed under the open-source Common Development and Distribution License (CDDL).

Trend Micro has been actively seeking royalty payments for ‘600 patent through litigation. The company in 1997 settled a case against Network Associates, currently part of McAfee. It also has signed licensing agreements with Integralis, Sybari and Fortinet, according to court documents.

Barracuda manufactures a number of security appliances that block spam, filter web traffic or secure instant messaging traffic, among other things. The Northern California, privately held firm won’t disclose sales, but annual revenues are estimated to exceed US$100 million.

Headquartered in Japan, Trend Micro is one of the world’s largest security vendors with 2006 sales reaching $719 million.

On Nov. 20, 2007, Trend Micro logged a complaint with the U.S. International Trade Commission against Barracuda and Panda Systems of Spain, demanding that the trade body block both firms from importing products violate the patent into the U.S. The complaint against Barracuda pinpoints ClamAV as the infringing component. The complaint against Panda Systems doesn’t mention any specific infringing components.

ClamAV is governed by the general public license version 2 (GPLv2). Drako claims that Trend Micro’s patent claim, if successful, could effectively block most use of the software.

“Scanning for viruses at the gateway is an obvious and common technique utilized by most businesses worldwide, and this is how ClamAV is commonly used,” said Drako.

In its complaint before the ITC, Trend Micro argues that Barracuda imports its products. A potential patent infringement would there constitute a trade violation.

Drako believes the trade body is the incorrect venue for the dispute because Barracuda designs and manufactures all of the products in question in the U.S.

Drako also claims that Trend Micro’s patent claim would stifle the ClamAV open-source project. He has put out a cry for help, which has drawn a response from several sides. Although Barracuda already claims that it has strong prior art portfolio that it believes will help it invalidate the patent, Drako also has put out a request to the free and open-source community for help in identifying additional prior art to help the case.

The Software Freedom Law Center, an organization that provides legal support to free and open-source software projects, also has sided with Barracuda. Eben Moglen, director for the SFLC argued that Trend Micro is “posing a nuisance to the free world.” He welcomed Barracuda’s persistence in fighting the case, adding that the group would pitch in to help.

Moglen declined to say which steps the group plans to take. A common strategy to fight a patent is to ask for reexamination by the U.S. Patent and Trademark Office, which could lead to the patent to be invalidated.

Trend Micro wouldn’t comment on pending litigation. The vendor however denied that its patent claims are aimed at open-source or even just ClamAV. A company spokesperson pointed to the 2005 settlement of a legal case against Fortinet. The dispute also revolved around the ‘600 patent, but instead of ClamAV involved a closed source application.

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