January 29, 2008

Is Trend Micro-Barracuda case a hair on fire moment?

He’s certain of it in fact. (Picture from Learn-Shiatsu of the UK.)

Matt says Trend Micro is making claims for its patent (number 5,623,600 if you’re scoring at home) that make open source anti-virals illegal.

He may be right. He also may be wrong. But if he is right, he says, everyone with open source anti-virals on their network will lose them, or face bills they can’t afford.

Think of the children!

The dispute is between Trend Micro and a company called Barracuda Networks, but this is really about ClamAV, the open source anti-viral which Barracuda (and lots of other companies) use in their products.

Trend Micro says ClamAV infringes on their patent, so they’re going after the companies which use the software at issue.

Barracuda says there is a lot of prior art here and the patent is overly broad. Trend Micro, however, notes that its commercial rivals license the patent.

The Register derides Barracuda’s call to arms as “playing the hippie card” but there are, in fact, many examples of an open source process finding prior art to invalidate a patent claim. (Also, calling the open source movement “hippies” is so 1980s.)

So what we have here, it seems, is a legal dispute and not a 12-alarm fire. At worst it’s a case illustrating the need for patent reform, specifically for testing claims of prior-art, and the breadth of claims, before a patent is granted.

Trend Micro isn’t just saying it has a better mousetrap. They’re saying they have a patent on all mousetraps. That sounds like the very definition of overly-broad to me.

But fortunately, courts move slowly. There is plenty of time for discovery to proceed, on both of Barracuda’s defense claims. We’ll have legal and political answers on the use of patents to deny innovation long before any verdict here.

So rather than running about like our hair’s on fire let’s just get to work. Or use the text link to the left of the picture for some healing meditation.