Patently Bad

At first glance, news that Trend Micro is suing Barracuda for alleged infringement of one of its patents might seem to be yet another instance of the broken nature of the US patent system, whereby even the most trivial and obvious software idea can be patented. After all, as the abstract for the patent in question puts it, this is:

A system for detecting and eliminating viruses on a computer network includes a File Transfer Protocol (FTP) proxy server, for controlling the transfer of files and a Simple Mail Transfer Protocol (SMTP) proxy server for controlling the transfer of mail messages through the system. The FTP proxy server and SMTP proxy server run concurrently with the normal operation of the system and operate in a manner such that viruses transmitted to or from the network in files and messages are detected before transfer into or from the system.

This is precisely how any idiot would scan incoming files and messages. The idea behind patents is that they should encourage innovation: there is zero innovation here. And yet over and above this gross distortion of the patent system's purpose, there are a number of particularly disturbing aspects about the case.

For example, Trend Micro has adopted a tactic that is increasingly popular with companies suing for alleged patent infringement, as Techdirt's Mike Masnick explains:

We noted last summer that patent holders were skipping the courts and going to the International Trade Commission instead, claiming that infringing products represent unfair trade practices, and the ITC should ban those products from being imported (so it only applies to imported products, rather than domestic ones). This is effectively an injunction within the US for foreign products. Where it gets tricky is that the ITC is under no obligation to follow the court's rulings on this matter or use the standard tests over whether or not a patent is valid or an injunction makes sense. It can just decide there's infringement and ban the sale of the product in the US -- basically giving patent holders a way to get an injunction without ever going to court.

Barracuda, of course, is a US company, so the ITC ought to be irrelevant. But Trend might be arguing that the open source nature of Clam AV – the program alleged to be infringing – means that some contributions come from outside the US. This is a particularly worrying logic, because it would apply to practically any open source project if upheld, making them all vulnerable to this kind of injunction.

Indeed, the whole case threatens to become a model for others to follow in attacking open source through the use of ridiculously broad and obvious software patents. For this reason, it is imperative that this action be defeated, and that Barracuda's praiseworthy decision to fight rather than settle, be supported. One practical way in which to do that is to help the company find prior art:

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, “prior art” showing antivirus scanning on a firewall or gateway is of interest. However, many of the claims do not require virus detection at a gateway; and therefore, any material that illustrates virus scanning on a file server is also of interest.

As Eben Moglen of the Software Freedom Law Center, and the legal guru behind the recent versions of the GNU GPL, points out in this excellent in-depth article by Bruce Byfield on the case, there is a deep irony here, “that proprietary software, having created a situation in which anti-virus is required, should now be attempting to outlaw an effort to correct the problem.”

There is also a lesson for the UK in all this. Until recently, the UK Patent Office took the eminently sensible line that software was not patentable. That has led to an environment where companies and programmers can safely develop new and innovative software without having to look over their shoulder all the time. But a very recent judgement seems to have called that absolute ban into doubt, as reported on the IPKat site:

In a surprising (to this Kat at least) turn of events, the Honourable Mr Justice Kitchin has ruled today that the current UK Patent Office practice of flatly rejecting patent claims to computer program products is wrong.

The current threat hanging over the Clam AV program in the US, and the dire consequences for open source software in general that would result in the event of Barracuda's defeat in the courts, should serve as a very clear warning to everyone concerned in the UK against descending down the slippery slope of allowing any kind software patents. The American experience has shown that the people who really benefit are not ordinary companies holding patents, since they are often forced to cross-license, and certainly not the general public, but patent trolls and lawyers.


Copyright © 2008 IDG Communications, Inc.

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