Trend Micro and Barracuda fight over trivial patent

A legal dispute between Trend Micro and Barracuda Networks has arisen over a patent and the use of ClamAV in commercial gateway security solutions. A patent (filed in 1995) was granted to Trend Micro in 1997 for filtering viruses out of FTP and SMTP traffic using proxies. This is precisely what Barracuda Networks' devices do.

According to media reports, Symantec and McAfee have already reached a confidential agreement with Trend Micro and pay licensing fees. Barracuda Networks does not wish to recognise the patent, as it states that filtering of malware at gateways was already standard practice when the patent was granted - an opinion shared by the Free Software Foundation's legal advisor Eben Moglen, who believes the patent is invalid and should never have been granted.

Barracuda Networks submitted an application for a declaratory judgement to a US federal court in early 2007, calling for the patent to be declared invalid. Trend Micro reacted with a complaint to the International Trade Commission (ITC), which deals with imported goods and agreed to hear the dispute. Trend Micro sees open source anti-virus software ClamAV as imported goods. Whether this complaint has any substance remains to be seen - ClamAV can be downloaded from servers belonging to Sourceforge, which are located in the US. A result is expected in late February.

Moglen finds the ITC complaint bizarre, "That would tend to confirm my belief that what we have here is a software company prepared to do harm to the free [software] world solely for its own profit." Taking this idea to its logical conclusion, computers assembled in the US would be considered imported goods if imported screws were used in their construction.

Barracuda Networks has now appointed itself as defender of the open source movement and is hoping for public support, in particular from organisations and groups involved in promoting free software. However, according to Trend Micro, the dispute is not about open source software, but about Barracuda Networks' products. No lawsuits are planned against other vendors using ClamAV. The company was not willing to confirm that this would remain the case in future.

(mba)