Is Trend Micro-Barracuda case a hair on fire moment?

Is Trend Micro-Barracuda case a hair on fire moment?

Summary: There is plenty of time for discovery to proceed, on both of Barracuda's defense claims. We'll have legal and political answers on the use of patents to deny innovation long before any verdict here.

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TOPICS: Open Source, Legal
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Hair on Fire from Learn-Shiatsu.co.ukMatt Asay thinks so.

He's certain of it in fact. (Picture from Learn-Shiatsu of the UK.)

Matt says Trend Micro is making claims for its patent (number 5,623,600 if you're scoring at home) that make open source anti-virals illegal.

He may be right. He also may be wrong. But if he is right, he says, everyone with open source anti-virals on their network will lose them, or face bills they can't afford.

Think of the children!

The dispute is between Trend Micro and a company called Barracuda Networks, but this is really about ClamAV, the open source anti-viral which Barracuda (and lots of other companies) use in their products.

Trend Micro says ClamAV infringes on their patent, so they're going after the companies which use the software at issue.

Barracuda says there is a lot of prior art here and the patent is overly broad. Trend Micro, however, notes that its commercial rivals license the  patent.

The Register derides Barracuda's call to arms as "playing the hippie card" but there are, in fact, many examples of an open source process finding prior art to invalidate a patent claim. (Also, calling the open source movement "hippies" is so 1980s.)

So what we have here, it seems, is a legal dispute and not a 12-alarm fire. At worst it's a case illustrating the need for patent reform, specifically for testing claims of prior-art, and the breadth of claims, before a patent is granted.

Trend Micro isn't just saying it has a better mousetrap. They're saying they have a patent on all mousetraps. That sounds like the very definition of overly-broad to me.

But fortunately, courts move slowly. There is plenty of time for discovery to proceed, on both of Barracuda's defense claims. We'll have legal and political answers on the use of patents to deny innovation long before any verdict here.

So rather than running about like our hair's on fire let's just get to work. Or use the text link to the left of the picture for some healing meditation. [poll id=67]

Topics: Open Source, Legal

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3 comments
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  • Others licensing is not evidence of patentability

    I love it when a "patent troll" uses licensing agreement with another company as evidence that their patent is valid.

    The fact that somebody was dumb enough to sign a licensing agreement and pay money for an invalid patent is by far any evidence of patentability of their product. It is most likely that the companies have a cross-licensing (meaning they get the license by default) or somebody decided that is was cheaper to just pay a few bucks than spend millions in layer fees.
    wackoae
  • Just another proof of the silly idea of software-patents.

    Software-patents (basically a US-illness) is only for the benefit of BIG companies and patent-trolls. Small software developers worst nightmare as the can not afford to find out if they are infringing a patent, and it carries more expence (time AND money) for the p+atent than the development of software.
    It is a SICK IDEA. Small developers are MUCH better off with world-wide approved COPYRIGHT. Hardly ANY cost (time and money), and it is world wide.
    hkommedal
  • RE: Is Trend Micro-Barracuda case a hair on fire moment?

    "Trend Micro says ClamAV infringes on their patent"

    That simply is not true. Don't take PJ's "reporting" of this at face value, go and read the documents yourself. Read the patent filing and the claims. It's obvious that this is not about ClamAV, but how ClamAV was incorporated into Barracuda's products.
    SwashbucklingCowboy