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Symantec shrugs off suit setback

A judge denies Symantec's request for a preliminary injunction in its lawsuit against antivirus rival McAfee, according to Network Associates

A judge has denied Symantec's (SYMC) request for a preliminary injunction in its lawsuit against antivirus rival McAfee, according to Network Associates (NETA).

Network Associates, which was formed after a recent merger between McAfee and Network General, also said it has dropped its $1 billion defamation suit against Symantec. The dispute involves software code that Symantec alleges McAfee lifted from its antivirus software.

Network Associates claims the code, which it has removed from current versions of its PC Medic and VirusScan, had been downloaded from the Internet and was therefore considered in the public domain.

The court's decision casts some doubt on the strength of Symantec's case. "A plaintiff need only show a reasonable likelihood of success on its copyright infringement claim to support a grant of a preliminary injunction," the ruling stated. Symantec's evidence apparently did not convince U.S. District Court Judge Ronald Whyte of San Jose, California, that the company had that "reasonable likelihood of success" in its claim.

But don't expect the nasty legal squabble to end anytime soon. Judge Whyte has set a September 14 trial date, and Symantec will continue pressing its case.

"We're still pushing 100 percent forward," said Enrique Salem, Symantec's chief technology officer. "We will win this case because our intellectual property, our source code, is in their product. Whether they have removed or not, it doesn't absolve them."

Salem also brushed off McAfee's actions in dropping the defamation suit, saying they indicate McAfee did not have a strong case on that matter. Symantec had issued a public apology in August after releasing a statement that McAfee had admitted copying code from its antivirus products. McAfee never had admitted to using copied code.

"We have no intention of settling. We are not going to withdraw the suit," the Symantec executive added.

Network Associates wants the highly publicized suit to end. "We would like to be done with this, to move forward," spokeswoman Jennifer Keavney said. "We're hoping Symantec will do the same. That's why we dropped the defamation suit."

Whyte's order dismissing the motion for a preliminary injunction came December 19, but McAfee issued its press release this afternoon, saying it had just received the document from its law firm. The order removes the last pending motion in the case, which has gone into its discovery stage.

Although McAfee removed the disputed code from the latest versions of its two products, Symantec had sought a recall of McAfee's PC Medic product, which Whyte denied.

Symantec's Salem said the latest ruling showed the judge was reluctant to pull a product from the shelf. "There is still wrongdoing here. They will continue to hide the facts," he insisted.

In October, Whyte ruled that McAfee could not ship any software that contained code cribbed from Symantec. The recent decision came on a motion filed by Symantec after that ruling.

First filed in April, the suit alleges that key portions of Symantec's CrashGuard software were lifted for McAfee's antivirus product. In July, Symantec amended its complaint to allege that McAfee also misappropriated code in McAfee's VirusScan software.

McAfee has argued in court papers that Symantec's code--about 130 lines out of more than 100,000--were inadvertently included in its PC Medic and VirusScan products.

McAfee said it had removed 30 lines of disputed code from its PC Medic software in May and 100 lines of code from VirusScan in July.