Trend Micro sucker punches Barracuda

Dubious IP claims used to gain market control

Intellectual property, or IP, in the form of patents is, in theory, how we reward those who break new ground, explore strange new technologies, geek out new algorithms and new gadgets, and boldly go where no techie has gone before. In practice, the whole field of IP has become a complete mess with patents being awarded for things that no sane person would call "novel" -- once a key requirement for patentability.

A great example of how the concept of patentability has been diluted and perverted is Amazon's 1-Click. If this insanity hasn't crossed your path yet, allow me to explain: 1-Click is simply the ability for customers to place an online order using a single click. Novel? I think not.

The US Patent Office, in what must have been a fit of dementia, awarded US Patent 5,960,411 to Amazon in September 1999 for 1-Click and the company subsequently licensed it for Apple's use in the iTunes store and then took Barnes and Noble to court for not licensing the technique's use in its online store.

To many people's satisfaction, the validity of Amazon's patent was challenged at the end of last year but until a final judgment is made the patent stands.

So, while there is a valid role for patents, there also is the bogus use of them as tools of extortion. In the case of 1-Click, Amazon can afford serious legal muscle and any company that doesn't have deep enough pockets to fight a lawsuit over patent infringement has only one choice: License or find another solution.

Now here's another case where dubious IP is being used for extortion and to gain market control. The story starts about two years ago when Trend Micro, purveyors of antivirus technology, took Barracuda Networks, purveyors of e-mail and Web security appliances, to court claiming patent infringement. The pivotal claim was that Barracuda was violating Trend Micro's US Patent No. 5,623,600, which spells out how to use antivirus technology on a gateway appliance to remove malware threats for clients on an attached network.

Trend wants Barracuda to either license the IP or stop offering antivirus features on an appliance. Once again you have to marvel at the fact that Trend Micro had been granted a patent over something so blindingly obvious as running a service on a gateway!

Last year Barracuda filed for declaratory judgment asking a US Federal Court to invalidate Trend Micro's patent. Trend suddenly became very creative. It filed a claim with the US International Trade Commission (an independent, non-partisan, quasi-judicial, federal agency that "determines the impact of imports on US industries and directs actions against certain unfair trade practices") claiming Barracuda was importing product that infringed its IP.

The sneaky part here is that, because Barracuda imports power supplies and motherboards from China, and uses a free open source software (FOSS) antivirus package developed in Europe, the ITC had an excuse to be interested, even though all of Barracuda's assembly is done in the United States.

Why does this matter? Because if the ITC should decide Barracuda is infringing Trend Micro's patent, then anyone with intellectual property can start legal proceedings through the ITC against someone who uses FOSS that has any development done outside of the United States. The big risk here is that the ITC's judgments may be more damaging and restrictive than those of US courts, making the role of FOSS in the market far more complicated and less effective.

So, when you think of IT, think of what underpins the products you use. If Trend Micro gets its way through the ITC, other companies with IP axes to grind will surely follow suit and your options could be severely limited.

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Mark Gibbs

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