Novadigm answers Marimba's patent suit –

Novadigm Inc. has responded to the Marimba Inc. patent lawsuit, saying it filed the software-distribution patent in dispute two years before Marimba Inc. filed its own.

Marimba Inc. announced Monday that it has sued Novadigm Inc., alleging that the company has infringed on Marimba's patent for its software-distribution technology.

The lawsuit is similar to one Novadigm filed against Marimba in March 1997 in the same San Jose, Calif., federal court over Novadigm technology for updating software on desktops.

In Marimba's lawsuit, filed Friday, the company seeks treble damages and an injunction to prevent Novadigm from making or selling products that infringe on the patent, according to a Marimba statement. Marimba was issued U.S. Patent No. 5,919,247, entitled "Method for the Distribution of Code and Data Updates," on July 6, the company said.

"Novadigm is attempting to enter Marimba's market space in any way possible, including using Marimba's own patented technology and ideas to compete with Marimba," Kim Polese, Marimba president and CEO, said in the statement.

The company, which made a name for itself with its "push" technology, wouldn't comment further on the lawsuit, said spokeswoman Suzan Woods. Marimba is based in Mountain View, Calif.; Novadigm is in Mahwah, N.J.

Novadigm filed its patent application in 1994 and began shipping products using the technology the following year, said Albion Fitzgerald, Novadigm founder and CEO. The Novadigm patent, No. 5,581,764, entitled "Distributed Computing Network Including Hierarchical Resource Information Structure and Related Method of Distributing Resources," was then awarded in 1996, the same year that Marimba filed its patent application, he said. Marimba received its patent award about three weeks ago, Fitzgerald added.

The fact that Novadigm has been using its patent technology since long before Marimba filed its patent application invalidates Marimba's patent award, according to Fitzgerald. "Prior art invalidates a patent even after the patent has been awarded," he said.

The Novadigm lawsuit is scheduled to go to trial in mid-November, at which time the court will determine whether Novadigm's patent is valid, Fitzgerald said. If it is found to be valid, the next phase of the trial will begin in the first quarter of 2000, when the court will determine whether Marimba infringed on Novadigm's patent, he said.

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