Open source community rallies to fight patent spat
Software patents are an important matter in the open-source world. Leigh Dyer looks at a patent case between Trend Micro and Barracude Networks that has brought out the best in the open-source community.
One of the most concerning things about developing and using open-source software is the threat posed by software patents. For the big players, like Microsoft and IBM, software patents are like a cold war, fought using MAD (mutually-assured destruction) tactics.
They stockpile patents like they're nuclear weapons, and the threat of retaliation keeps them all from filing patent suits against each other. More recently, we've seen cross-licencing agreements, where two companies enter in to what's essentially a non-aggression pact, pledging not to launch infringement cases against each other.
Open source throws a spanner in the works because, in many cases, a company has no vendor to fall back on. If your company uses Microsoft software that infringes on a patent, then Microsoft is at fault, but if you use open-source software that infringes on a patent, your company may be open to attack.
Novell's highly-critisised deal with Microsoft was based largely on this threat, but there's already one case in the courts right now: Trend Micro vs Barracuda Networks.
Barracuda makes mail-scanning appliances that filter spam, and also scan for viruses, using the open-source ClamAV virus scanner. However, Trend Micro has a patent on mail virus scanning, issued in 1995, which it claims Barracuda is in violation of.
As a small company with no patent base, Barracuda could have been left without a leg to stand on, but the open-source community is vast, and when it's rallying for you, amazing things can happen.
As it turns out, while Trend Micro may have a patent on mail virus scanning, it wasn't the first company to do it -- a product called TFS Gateway had much the same functionality in early 1995, several months before Trend filed its patent. In the patent game, that's called "prior art", and it's a serious threat to the legitimacy of Trend's patent.
TFS Gateway was an obscure product that had long passed in to Internet history, and without the thousands of long memories of the open-source world, it'd doubtful that Barracuda's lawyers would have discovered it. Now, Barracuda should have more than enough ammunition to scuttle Trend's case.
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