Trend Micro sues Barracuda, potentially raises the cost of security for all

We're used to patent trolls being shifty little bozo operations like Acacia Research that serve no useful purpose beyond proving that some life forms never evolve. Sometimes, however, patent trolls come in larger sizes and have otherwise legitimate businesses. Such is the case today with Trend Micro's apparently specious lawsuit against Barracuda Networks and, indeed, the entire open-source community.

As Justin Mason, vice president of the Apache Software Foundation, notes:

Trend Micro's actions are clearly an attack on free and open-source software and its users, as well as on Barracuda Networks. The '600 patent covers a trivial method, one which was obvious to anyone skilled in the art at the time (the patent was written), and should be rendered invalid as soon as possible.

Unfortunately, our patent system only makes sense on paper. Once it hits the courts, all bets are off. This is why repudiating silly claims like Trend Micro's is so important, and why a collective response is critical.

Here's what happened in a nutshell:

On September 21, 2006, Trend Micro contacted Barracuda Networks regarding a non-exclusive license fee for Trend Micro's U.S. Patent No. 5,623,600. In response, Barracuda Networks made several failed attempts to convince Trend Micro (to reverse course), Barracuda Networks then filed for declaratory judgment in early 2007 in U.S. federal court. This action was taken to prove that Trend Micro's '600 patent is invalid and not infringed, thus should end continued legal threats against Barracuda Networks for its use of the free and open-source ClamAV software.

Simple, right? Not quite. Patents never are. Indeed, reading through Trend Micro's initial letter to Barracuda, you can almost hear the patent attorneys rubbing their hands together in anticipation of getting something for nothing:

McDermott Will & Emery, LLP is counsel for Trend Micro. As you are probably aware, Trend Micro possesses a significant patent portfolio in the field of computer firus detection and removal. Trend Micro is the owner by assignment of United States Patent No. 5,623,600 (the "'600 Patent") and has the right to grant licenses under the '600 Patent. We believe that the '600 Patent may be of particular interest to Barracuda Networks in relation to at least Barracuda's Spam Firewall and Web Filter products....

Trend Micro is willing to grant a non-exclusive license under these and other patents under mutually acceptable terms....(Court Documents on File)

I'm sure. After receipt of this letter, Barracuda met with Trend Micro's attorneys to determine how to proceed. I'm guessing the conversations went something like this:

"Hello! We're Trend Micro and you owe us money because we have lots of IP.
"Um, OK. We're Barracuda and we make money by making open-source software available at a reasonable price. You have demonstrated no validity of your patents and, indeed, have such a broad interpretation of your patents that it's nigh impossible that your claims are valid."
"Hmm....Did we mention that we have lots of IP and that you owe us money?"

Barracuda believes that ClamAV and Barracuda don't infringe. Trend Micro disagrees. Ultimately, the courts or a settlement will resolve the issue, but only a clear repudiation of Trend Micro's claims will result in the customer winning.

Dean Drako, CEO of Barracuda Networks, declares:

Trend Micro appears to be seeking an interpretation of its '600 patent such that it would have exclusive control of gateway antivirus scanning. Scanning for viruses at the gateway is an obvious and common technique that is utilized by most businesses worldwide. So this interpretation would mean that anyone, including the owners of the more than 1 million active ClamAV installations, could potentially be sued by Trend Micro.

Since the original letter Trend Micro sent to Barracuda, things have grown murkier. Barracuda filed in Northern California (where the two companies' offices are located). Trend responded and then filed suit in the International Trade Commission, which puts Barracuda's federal case on hold. This makes a lot of strategic sense for Trend Micro but little legal sense. Here's why.

In the ITC case, Trend added a range of other causes (violation of patents on power supplies and motherboards built in China and distributed to the U.S.). But Barracuda builds its own hardware in the U.S., which makes the ITC a poor forum. Trend knows this because it was disclosed in the federal case. Trend wrongly accuses Barracuda of importing infringing motherboards and power supplies, which is wrong on two counts:

1. Barracuda doesn't import anything. Everything is manufactured in the U.S.


2. These particular parts can be bought at a local Frys/electronics store. There is nothing specific to Barracuda in them. If Barracuda is infringing, many, many others would be.

Barracuda doesn't even import ClamAV. It downloads the open-source software from Sourceforge, whose servers are based in the U.S. ClamAV is owned and developed by a U.S.-based company, Sourcefire. Trend Micro knows this.

But that's beside the point. I think it's likely that Trend Micro has a division set up, just like Qualcomm, to milk its patent portfolio. It's effectively one big patent troll.

But its actions aren't just about two consenting companies hashing out legal bargains. Think about the ramifications. Barracuda has been able to leverage open source to bring down the cost of security. Early on, Barracuda was blocking spam and viruses at roughly 1/10 the price of the nearest proprietary competitor (that was only selling an antivirus solution). Barracuda has helped to bring down prices across the board, and it has been able to do so because of open source.

More open source equals less spam and more security. Trend Micro is effectively trying to raise the price of security. Take ClamAV off the market with its 1 million deployments of ClamAV at the gateway and 100 million-plus PCs will be left unprotected, or less protected. Barracuda sells a lot of hardware to schools and libraries that want Internet protection but can't afford proprietary solutions. What happens to the kids when you take ClamAV and other open-source projects out of commission? Trend Micro has an answer, but it's not one that these schools can afford.

Antivirus and antispam innovation has tended to come from open source, not the large proprietary vendors. Trend Micro's lawsuit is designed to put cash in its pocket but will end up hurting the consumer.

We really need to stop this inane patent feuding. Companies like Trend Micro are doing responsible IP holders a disservice. Here's how you can get involved.

We are awaiting comment from Trend Micro and will publish it once we've heard from its PR department.