Software companies are scrambling to analyze the possible legal repercussions of a recent patent issued to McAfee by the U.S. Patent Office. The patent is unusually broad, potentially giving McAfee the rights to key technologies used by both competitors and partners alike.
Some areas that fall under the jurisdiction of the patent include auto-updating, subscription services and certain software that initiates downloads without prompting users. The company has taken a stand to protect its newfound ownership, telling the media that parties can either work with McAfee or engineer around it.
When McAfee, of Sunnyvale, Calif., first applied for the patent in 1998, existing services such as Microsoft Corp.'s Windows Update -- launched in June of that year -- utilized technology to which McAfee now seemingly owns the rights. Makers of alternative operating systems such as Red Hat's Linux also provide similar update services. Furthermore, Web browsers such as Internet Explorer have included a behavior that allows customers to optionally open downloads without user intervention for years.
Services that offer online backups and disk utilities also fall under the patent. Fundamentally, all software products that include auto-update functionality and self-installation may be affected.
.Net, the cornerstone of Microsoft's future business strategy, is centered on a subscription-based business model where customers appear on the income sheet more than just for one initial purchase. When asked for comment, Microsoft spokesman Jim Desler declined to discuss the patent, pointing out the special relationship the two companies enjoy in the development of .Net. McAfee is a .Net alliance partner.
Symantec Corp., a competing provider of anti-virus solutions that sought to patent the process by which its LiveUpdate software kept virus definitions up to date, now faces the prospect of being in violation of the McAfee patent. But Symantec spokesman Ted Price downplayed the possibility of McAfee taking action, telling BetaNews, "We don't believe their patent will have any affect on our business. Our development and legal teams are still going over the announcement, but we don't have anything to say beyond that."
In an interview with the Associated Press, a McAfee representative indicated that any company that is seen as "willfully flaunting the technology" may face legal action. McAfee could not be reached after repeated attempts, and has not indicated whether it will provide technical assistance to companies that are currently in violation of the patent prior to seeking a legal remedy.
The patent includes two key paragraphs that could have far-reaching implications.
According to the patent filing, "In one aspect of the present invention, the server computer receives a request in the form of a data packet from the user computer, whereupon the server computer causes a first Web page image to be displayed on the user computer via a browser program running on the user computer. If the user inputs identification and a secure password in the first Web page and transmits the first Web page to the server computer, the server computer authenticates the user information and opens a secure connection with the user computer. The server computer thereupon, with no additional input from the user, searches the user computer for pre-designated executable software, and if such software is not found or is found to be outdated, downloads to the user computer said software or upgrades to such software. Finally, the server computer causes the software to be executed on the user computer.
"In another aspect of the invention, the server computer stores user information received during an initial registration process and verifies the user information when a user requests the services of the server computer via the first Web page."
Until corporate lawyers have analyzed the patent filing, the depth and scope of possible violations can only be speculated. However, the potential for strict consequences clearly exists.