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Barracuda plays the hippie card in Trend Micro patent row

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Barracuda Networks has called on open source advocates to help fight its patent dust-up with Trend Micro over the Clam AntiVirus software package. Specifically, the provider of network-based security products for email and websites is asking for help in dredging up old technologies that were developed prior to the filing of the patent in 1995.

The patent covers methods for hunting malware at the network gateway.

After Trend Micro attorneys began sending nasty grams to their counterparts at Barracuda demanding royalties, Barracuda early last year sued Trend seeking a court order invalidating the patent. Trend responded by filing a complaint with the International Trade Commission (ITC), which in December agreed to decide whether to ban the importation of Barracuda's products. Trend's complaint also names Panda Software.

Now, Barracuda is calling on lovers of free and open source software to come to its defense and hunt for what is known as prior art. That's lawyer speak for evidence that would invalidate the patent by proving the patented techniques existed prior to Trend Micro's application.

Barracuda has set up a web site, inviting "you to support Barracuda Networks in its efforts to protect free and open source software from unjust patent threats." [What's that smell? - Ed]

"Scanning for viruses at the gateway is an obvious and common technique that is utilized by most businesses worldwide," Barracuda says on its web site. "We are interested in all material, including software, code, publications or papers, patents, communications, other media or Web sites that relate to the technology described prior to the filing date."

In particular, Barracuda is asking for information about a product called MIMESweeper 1.0 from a company called Clearswift, Authentium or Integralis, which may have used several methods claimed in the patent. The company goes on to list several other products it says constitute prior art.

In taking on Trend, Barracuda is trying to defeat a beast that several other companies - Symantec and McAfee among them - were unable to slay. According to lawyers for Trend, both companies entered into settlement agreements to license the technology.

One early holdout, however, was Fortinet. In its own proceedings before the ITC, it asserted the same prior art included on Barracuda's website, but the ITC was unimpressed. In 2005, Fortinet got slapped with a permanent injunction prohibiting the importation of its products.

Barracuda may be framing the dispute as a David-and-Goliath fight, pitting dirty purveyors of proprietary software against more benign advocates of open source, but that's not how Trend sees it.

"We view this as a commercial dispute between two for-profit businesses," says Mark Davis, an attorney at McDermott Will & Emery, which is representing Trend. "Barracuda is selling their boxes for profit and in doing so, we believe Barracuda is infringing our patent."

The argument is unlikely to sway the self-appointed protectors of open source software, which Barracuda has invoked in its public relations battle against Trend. Indeed, a press release Barracuda issued today quotes Eben Moglen, a founder of the Software Freedom Law Center, reminding us that "Collective defense from software patents is a shared responsibility for everyone in the free software ecosystem."

And that may be true. But it bears repeating that open source advocates have to play by the same intellectual property laws as everybody else. It will be interesting to see if the freedom-loving fans of open source are more successful than Symantec, McAfee and Fortinet in dredging up more persuasive prior art. ®

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