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Novadigm back on attack over patent

Everyone wants that last word, and today the chairman and CEO of Novadigm shot back at Marimba CEO Kim Polese over her comments regarding the pending patent lawsuit between the two companies.

    Everyone wants that last word, and today Albion Fitzgerald, chairman and CEO of Novadigm (NVDM), shot back at Marimba CEO Kim Polese over her comments regarding the pending lawsuit between the two companies.

    Progress on a new protocol to speed the distribution of data across the congested Net may be the real victim in this back and forth, delayed while the two proponents of push technology work out their differences in court.

    Earlier this week, push technology start-up Marimba announced it would submit to the W3C a component of its technology that speeds the distribution of data across the Net called the Distribution and Replication Protocol (DRP) for consideration as a possible standard.

    But software distribution specialist Novadigm alleges that the technology offered to the W3C includes elements of its patented software code. The company filed suit against Marimba in March over intellectual property rights to technology found in the company's Enterprise Desktop Manager software tool and allegedly coopted in Marimba's push technology called Castanet.

    Marimba issued a response to the Novadigm request earlier this week, calling the lawsuit filed "baseless and without merit." The company called the allegations involving DRP "so vague as to be meaningless."

    "Lawsuits and allegations like today's are unfortunate in that they slow down innovation and are a tactic often used by companies who have otherwise failed to execute effectively in the marketplace and have no other way to compete," said Polese in a prepared statement.

    Fitzgerald shot back today: "Ms. Polese not only termed our suit 'baseless,' but called into question the acceptance of our technology in the market. Regarding the suit, we and our attorneys are confident of our position. Her response is nothing more than you would expect from a defendant in a case of this type, whatever its merits."

    A W3C representative said the organization is currently reviewing the latest developments concerning the DRP technology and subsequent public allegations by Novadigm.

    The standards effort won the support of several prominent third parties, including Sun Microsystems, Novell, Netscape Communications, and the @Home Network.

    Novadigm has requested that work on the proposed standard, which was initially floated at a press conference in New York earlier this week, be halted until a patent infringement lawsuit has been resolved. (See related story)

    "At the time the suit was filed in March, I don't think either side had any desire to try the case in the press, as the saying goes," said Michael Barclay, a lawyer with the Palo Alto, California-based law firm of Wilson, Sonsini, Goodrich, and Rosati.

    However, the announcement from Marimba and third parties concerning DRP evidently raised some eyebrows in the Novadigm camp. Marimba said it would offer elements of its push technology protocol-- elements that Novadigm alleges is part of their patented technology--to the W3C and would not reap any financial gain from the submission.

    "From Novadigm's standpoint, we have a technology that we believe is Novadigm's and we have a statement here [from Marimba] that says, 'We're so wonderful, we're giving this to the public,'" Barclay said. "It's our belief that a significant portion of this is Novadigm's technology."

    "This [public disclosure of the lawsuit] was triggered by Marimba's public press release," he said.

    Novadigm alleges that Marimba has infringed on the company's "fractional differencing" patent, which was issued in December of last year after a 1993 filing. The technology aids in disseminating the appropriate software upgrades to the appropriate desktops across a network using push methods. The company believes elements of DRP use methods similar to those found in the patented technology. Neither Marimba or Novadigm has previously commented publicly on the lawsuit.

    "We think this went from a relatively straightforward intellectual property dispute into a whole lot of other areas," said Albion Fitzgerald, chairman and CEO of Novadigm. "We found out about this yesterday, and we got together and said "enough is enough." There's injury and there's insult."