Barracuda Networks, a maker of e-mail and Web security hardware, has sent out a distress call to the open source community to save it from patent litigation at the hands of Trend Micro, a competing security company. On Tuesday it asked for help from anyone who can provide information that can invalidate Trend Micro's patent on gateway antivirus scanning.
Barracuda Networks has framed the dispute as an attack not only on itself but on the open source community and the free Clam AntiVirus software by "commercial patent holders attempting to unjustly hinder the free and open source community," as Dean Drako, president and CEO of Barracuda Networks, put it in a statement issued on Tuesday.
Trend Micro spokesperson Mike Sweeny said the litigation isn't an attack on the open source community. "This case is really about two companies, Barracuda Networks and Panda Security, that are selling products in the U.S. that we feel infringe on our time-tested patent," he said. Drako disagrees with this assessment. "If you read the legal documents from Trend Micro, all of the infringement claims they make are about Clam AV," he said in a phone interview. "They may be legally suing us but ... it's pretty clearly an attack on Clam AV."
It may also be an attack on the disruptive price points of products based on open source software. Drako pointed to a recent article that he said found Barracuda's hardware to be a tenth the cost of competing boxes.
The patent in question, U.S. Patent No. 5,623,600, was filed in 1995. Fortinet, another security hardware vendor, was accused of violating the patent in 2004 and settled with Trend Micro in early 2006. Sweeny from Trend Micro confirmed that both Symantec and McAfee have licensed the patent as well.
Following demands from Trend Micro in 2006 to pay a royalty that Drako characterized as onerous, Barracuda Networks sued Trend Micro in March 2007 seeking a declaratory judgment that it was not infringing upon the '600 patent. Toward the end of 2007, Trend Micro countered by filing a claim with the International Trade Commission (ITC) seeking to block the importation and inclusion of Clam AntiVirus software in Barracuda's security appliances.
"Trend Micro is seeking an interpretation of its '600 patent such that would give it exclusive control of gateway antivirus scanning," Barracuda states on a Web page it has posted about the case. "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."
"They're accusing us of importing open source software," said Drako. "How can you accuse someone of importing open source software? It's written everywhere." Nonetheless, Trend Micro appears to be doing just that it. If it prevails, Drako predicts trouble for companies that rely on open source software. "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."
Mark Davis, an attorney at McDermott Will & Emery who is representing Trend Micro, said he didn't want to speculate on the outcome of the case but noted that the '600 patent was upheld when Fortinet tried to fight it. "We want to try this in the courtroom, not in the press," he said.