In the face of a pending investigation by the U.S. International Trade Commission, Barracuda Networks publicly announced it plans to defend itself against Trend Micro's accusations of patent infringement, claiming that the case attacks the open source community.
Barracuda says that the case is a direct attack on the open source community.
"The issue at hand is that Trend Micro has chosen to attack our distribution of free and open source software," said Dean Drako, Barracuda CEO. "We're fighting it because we have no choice."
According to the ITC claim, Trend Micro alleges that Barracuda violated patent laws regarding Trend Micro's U.S. Patent 5,623,600 in several products that incorporate ClamAV software.
Trend Micro's '600 patent titled "Virus Detection and Removal Apparatus For Computer Network, " which filed on September 26, 1995, protects a process that scans and removes viruses as they move through an SMTP or FTP proxy server.
However, Barracuda contends that the patent is invalid due to obvious examples of prior art, and says it plans to defend free and open source software, which includes Clam AV software integrated into its antivirus systems.
ClamAV is a free and open source GNU general public license toolkit that can be used on e-mail gateways to scan messages for viruses. Barracuda says that the case entails significant implications for the open source community, especially if the patent infringement allegations were to be upheld in court.
"At some point in time, if Trend Micro prevails in their suits, they will have all of about a million installations that would basically be in jeopardy from Trend Micro for their use of ClamAV," said Drako.
Barracuda says that its decision to take action, and eventually go public, followed repeated legal action over the course of the last 16 months. Issues surrounding Clam AV and the open source software were called into question Sept. 21, 2006, when Trend Micro contacted Barracuda Networks regarding a license to its '600 patent.
Trend Micro maintained that the companies were selling Trend's patented products for a profit, and demanded that Barracuda either remove the antivirus scanning software from its products or pay a patent license fee.
In early 2007, Barracuda filed a declaratory judgment in U.S. Federal Court, which attempted to invalidate Trend Micro's '600 patent and end continued legal threats against Barracuda.
Contrarily, Trend Micro argued that the issue is not directly against Clam AV but about several antivirus products which incorporate patent-protected technologies that scan viruses at the gateway. Trend also said that the lawsuit also mentions products from Panda Security, which it says doesn't use open source as an engine.
"They're selling products that we feel infringe our time tested patent," said Mike Sweeney, Trend Micro spokesperson. "Open source is not really the heart of the issue here."
The company contends that it is not restricting the use of antivirus software, but is requesting that they be justly compensated for its protected intellectual property.
"We can't see how this case has a negative effect on open source development," Sweeney added.
Others can, however. In an effort to garner public support for its cause, Barracuda launched a Web site, calling upon the open source community to provide comments and relevant prior art showing examples of antivirus scanning on a firewall or gateway. The request was met with responses from open source supporters, including Free Software Foundation President Richard Stallman, who maintained that the technology is ubiquitous and commonly in businesses around the world.
"This attack is an example of the threat that software patents impose on all software developers; at any moment, you can get sued for using code with the author's permission, or even for the code you wrote," Stallman said in a posting. "Today the victim is ClamAV, but tomorrow it could be any program."
"Collective defense from software patents is a shared responsibility for everyone in the free software ecosystem. We are grateful to see device manufacturers like Barracuda networks take on this responsibility, and we ill do what we can to help those who help free software resist such patent abuse," said Eben Mogleen, a Columbia law professor and founding director of Software Freedom Law Center, in a posting on the Barracuda site.
Trend Micro begs to differ. Company representatives cited a recent case, in which a settlement was reached with UTM vendor Fortinet regarding infringement of its '600 patent. Trend Micro pointed out that the same examples of prior art used by Barracuda were already considered, and subsequently dismissed, in the ITC ruling against Fortinet in 2006.
"The prior art has already been considered by the ITC. We see no reason why the ITC should come to a different conclusion," said Mark Davis, outside council for Trend Micro.