The simmering patent dispute between Barracuda Networks and Trend Micro is about to go high profile.
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Barracuda, facing patent infringement charges from Trend Micro and an investigation into those charges by the U.S. International Trade Commission (ITC), said this morning that it will engage support from the free and open source software communities to defend its use of Clam AV in its Web security gateway Barracuda Web Filter and Spam Firewall products.
The company launched a Web site this morning asking open source supporters to submit works of prior art in order to build its defense. Barracuda CEO Dean Drako said GNU Linux creator Richard Stallman and Eben Moglen, a Columbia law professor and founding director of the Software Freedom Law Center, as well as high-ranking members of the Apache Foundation and Electronic Frontier Foundation, are throwing their support behind Barracuda's efforts.
"This is an attack on the open source community," Drako said.
Trend Micro countered that its claims are not about open source. The patent in question, U.S. Patent 5,623,600, also known as the 600 patent, protects a process that scans and removes viruses as they move through a SMTP or FTP proxy server.
"It is coincidental that Barracuda uses Clam AV," said Trend Micro vice president and general counsel Carolyn Bostick. "We have enforced the patent correctly in different situations with different engines; open source is not central to the argument. This is a red herring."
Clam AV, meanwhile, was acquired by Sourcefire last August. Sourcefire said it would continue to support the open source Clam project, in addition to commercializing the product.
In the interim, Barracuda has accused Trend Micro of patent trolling and is looking to the open source community for help in finding works of prior art, previous to the 1995 issuing of the 600 patent to current Trend Micro CEO Eva Chen and antivirus pioneer Shuang Ji. The dispute started about 18 months ago, Drako said, when Trend Micro requested licensing fees from Barracuda, citing an infringement of the 600 patent.
"They essentially said 'Remove Clam, or pay a patent license fee,' " Drako said. "We tried to get discussions with [Chen] to explain that we're including free software in our product as a convenience to our customers. How can you ask us to pay? It makes no sense. They wouldn't give us a meeting with the CEO, CFO, chairman--anyone. All we got were lawyers."
Drako added that Trend Micro did call out Clam specifically in its ITC filing, saying it has dissected Clam AV source code and called out subroutines it believes infringe on the 600 patent. "If they get their way, no one will be able to do gateway AV without a license from Trend Micro," Drako said. "We believe there is lot of prior art; we believe we are not infringing on the patent and neither does Clam AV."
Barracuda filed for a declaratory judgment in early 2007 asking federal courts to declare the 600 patent invalid. Trend Micro counter-claimed last November that Barracuda and Panda Software were infringing on the 600 patent in a filing with the ITC.
"That's when things got weird," Drako said. "Their filing with the ITC asked the ITC to bar imports of Barracuda products because that's what [the ITC does]. But all our products are manufactured in the U.S. and Trend knew this because it was disclosed in the federal case. We disclosed where our manufacturing facilities are and what is manufactured where in great detail. This is a blatent abuse of the U.S. legal environment in order to achieve some ends we don't understand."
Trend Micro has gone through the ITC before to defend the 600 patent. In 2006, a settlement was reached with UTM vendor Fortinet.
"The patent covers a process; it so happens Barracuda's implementation of that process infringes our patent," Bostick said. "This is not about open source freeware or Clam AV. It's a time-tested patent and we've enforced this against other companies, all of which do not use open source virus-scanning engines."