Trend Micro: Barracuda suit not about open source

By , IDG News Service |  Endpoint Security, antivirus, Barracuda Networks

Trend Micro may have received more than it bargained for in its software patent dispute with rival Barracuda Networks. In the past few months Barracuda's cause has been taken up by free software advocates, who see Trend Micro's patent claims as a threat to the open-source ClamAV antivirus project. That's because Barracuda uses ClamAV to be able to scan for viruses at the "gateway," where a local area network connects to the Internet. Trend Micro says it owns the technology behind this -- thanks to a patent it calls the "600" patent.

Barracuda argues that if the 600 patent is allowed to stand, the courts would be granting Trend Micro a monopoly in gateway antivirus scanning. Earlier this year Barracuda called on the open source community to help it prove that the 600 patent is not valid, much in the way that open source volunteers helped dissect the SCO-IBM lawsuit.

Trend Micro CEO Eva Chen, who is also one of the co-inventors of the 600 patent, discussed the dispute recently with IDG News Service. Following is an edited transcript of the interview.

IDGNS: What are your thoughts on this Barracuda dispute?

Eva Chen: The 600 patent has been litigated several times. Both with Symantec and IBM in the early days, we traded patent portfolios with each other. And we litigated with Network associates, now McAfee. We reached an agreement and we settled and they did pay us. Not long ago the same patent was litigated against Fortinet. We won."

The patent is a very legitimate patent: the concept of stopping the viruses in transition rather than at the end-points. So when the discussion with Barracuda began, we started with the same discussion -- "Maybe we can settle; maybe we can do something." They are obviously violating our patent. But they wouldn't agree to that. Instead they came out with this big PR (campaign) about how we were suing ClamAV. But we were not suing ClamAV. Barracuda is a for-profit company. They are taking ClamAV, putting it on their gateway and making money out of it. It's not free software that we are suing, it's Barracuda.

IDGNS: But if you are asserting patent ownership of a technology that's in an open-source project, I can see why people in the open-source community would be concerned.

Chen: We are not litigating against ClamAV. ClamAV is a virus scanner. We are litigating Barracuda, who are selling a gateway and putting whatever type of AV, whether it's ClamAV or Shophos or whomever's AV, on there.

IDGNS: There has been a lot of discussion in the open source community. Are you familiar with what they've posted on Groklaw about this?

Chen: Not really.

IDGNS: They say there's prior art. For example, something called the Norman Firewall.

Chen: Norman Firewall has been brought up in several instances, including Fortinet's litigation, and the judge ruled it's different. I'm not a judge. I'm not a patent specialist. All I can say is that the 600 patent has been litigated several times and was proved valid. It’s not up to us to say whether it's valid or not.

IDGNS: It seems like the open-source community's argument is that there are two technologies that were previously known, and that you guys have patented the combination of those two things. Is that a fair evaluation of it?

Chen: In the patent, we are not claiming that we invented the antivirus scanner. We are not claiming that we invented the proxy server. But the concept of using these two together so that you can stop the virus during the transition is new. Like I said, I'm not a patent specialist, but at that time it was awarded as a patent. And then later on even IBM themselves exchanged their patent with us, and so there was some recognition of that as a valid patent. And then later on it was litigated.

Software patents are always very controversial. It's not about open source; it's about how you define the patent.

IDGNS: What do you think of Sourcefire? Sourcefire acquired ClamAV and they intend to integrate this software into their products. That seems another potential problem. Have you guys got a cross-patent agreement with them?

Chen: I haven't checked with my lawyer, I don't know.

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