Patent Law

On the Clam

By Gary Odom and Jordan Kuhn

Barracuda Networks is crying for a lifeline from the open source software community in its patent infringement fight with Trend Micro. That cry is being answered with lofty words; factual ballast not in evidence.

Eben Moglen, founding director of the Software Freedom Law Center:

Collective defense from software patents is a shared responsibility for everyone in the free software ecosystem. We are grateful to see device manufacturers like Barracuda Networks take on this responsibility, and we will do what we can to help those who help free software resist such patent abuse.

Trend Micro had been seeking a patent license from Barracuda Networks for infringing 5,623,600, dating to 1995. The accused product is Clam AntiVirus, which is open source software, originally developed by Tomasz Kojm in 2001. Barracuda allegedly incorporates ClamAV into its security products: Barracuda Spam Firewall, the Barracuda Web Filter, and Barracuda IM Firewall.

Trend Micro previously licensed '600 to antivirus software makers Symantec and McAfee, and security hardware vendor Fortinet.

Barracuda replied to Trend Micro's licensing attempt with a declaratory judgment action, upon which Trend Micro counterclaimed, including ITC rousting.

Dean Drako, president and CEO of Barracuda Networks, frothed:

Scanning for viruses at the gateway is an obvious and common technique that is utilized by most businesses worldwide. Such an interpretation would mean that anyone, including the owners of the more than one million active ClamAV installations, could potentially be sued by Trend Micro.

If you read the legal documents from Trend Micro, all of the infringement claims they make are about Clam AV. They may be legally suing us but ... it's pretty clearly an attack on Clam AV.

They're accusing us of importing open source software. How can you accuse someone of importing open source software? It's written everywhere. If Trend Micro is successful in claiming that we import Clam AV, and therefore that the ITC is the appropriate court, I could go claim that Linux is imported by IBM. I could start suing them in the ITC. It could reinvent how patent litigation is done for open source software. It's a pretty bold move.

Drako is presently resting quietly in an undisclosed location.

"Barracuda Networks believes that the patent is invalid due to prior art and further believes that neither its products nor the ClamAV software infringe the patent." In related news, many young children believe in the Easter Bunny.

Trend Micro has ten U.S. anti-virus patents. Barracuda Networks appears to own a single patent: 7,254,038, claiming a low-profile computer system expansion card. Can't wait to hear what ditty Drako whistles when they find someone to shoot with their own 38.

Full post as published by The Patent Prospector on January 30, 2008 (boomark / email).