Barracuda
Networks plans to focus on finding prior art to defend itself and the open-source
ClamAV project against
patent claims by rival antivirus vendor Trend
Micro, which stressed Tuesday that it owns a tested and valid patent.

Barracuda, facing a Trend Micro complaint before the U.S. International Trade
Commission (USITC), will work on showing the agency that other companies used
gateway antivirus scanning before Trend Micro received its patent in 1997, Barracuda
said Tuesday. Barracuda, based in California, uses ClamAV code in some of its
products.

"In their claim, Trend Micro is seeking an interpretation of its ... patent
such that would give it exclusive control of gateway antivirus scanning,"
said Kylie Heintz, spokeswoman for Barracuda.

"We believe that neither our products, nor the free and open-source ClamAV
software, infringe the patent, and further we believe that the patent itself
is invalid due to prior art," Heintz said.

The USITC launched a formal investigation of the patent claims in December.

Barracuda's announcement that it intended to find prior art spurred action
in the open-source community. Early Tuesday, Groklaw,
a blog focused on open-source legal issues, posted an announcement
asking for help finding prior art.

But Trend Micro, which filed the USITC complaint in November, has a "known
and time-tested patent," said Michael Sweeny, a spokesman for Trend Micro.
The company won a similar dispute with rival Fortinet before the USITC in May
2005, Trend Micro noted. Fortinet
later settled the patent claims, getting a license from Trend Micro.

In addition, Trend Micro filed a similar complaint against Panda
Software International and Panda Distribution, which use a proprietary software
package, said Mark Davis, Trend Micro's outside counsel. Trend Micro has not
targeted the ClamAV project, he said. "This is purely against commercial
competitors," Davis added.

Commercial software vendor Sourcefire purchased the ClamAV project in August.
Sourcefire declined to comment on the patent dispute.

Open-source software is not the issue in the USITC complaint, Sweeny added.
"We can't see how this would negatively impact open-source development,"
he said.

Barracuda CEO Dean Drako called scanning for viruses at the gateway "an
obvious and common technique" used by most businesses. Almost anyone, including
the owners of more than 1 million ClamAV installations, could be sued by Trend
Micro if the company's patent claims hold up, he said in a statement.

Barracuda, maker of hardware containing cybersecurity products, has won support
in the dispute from the Software Freedom Law Center, a group working to protect
open-source software. The law center is grateful to Barracuda for fighting the
patent, said Eben Moglen, the center's founding director. "Collective defense
from software patents is a shared responsibility for everyone in the free software
ecosystem," he said in a statement.

Barracuda has a pending lawsuit seeking to invalidate the patent in the U.S.
District Court for the Northern District of California, San Jose division.

Trend Micro is misusing the USITC because it's filing a trade complaint asking
the agency to bar importation of a product against a company based in the U.S.,
Barracuda added. "Barracuda Networks designs and manufactures all of the
products in question in the United States," Drako said in his statement.
"We believe Trend Micro's actions are a blatant abuse of the U.S. legal
system."

But Trend Micro said the USITC is an appropriate venue for the patent complaint.
The 2005 Fortinet ruling was also against a company based in the U.S., Davis
said. "There appear to be several components that are imported," he
said.

Trend Micro's USITC complaint says Barracuda uses code from ClamAV, which is
written in part in Europe and Australia. Barracuda also imports hardware components,
the complaint says.

IDG News Service

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