Prior Art In Barracuda-Trend Micro Lawsuit

Joe Barr writes "Bruce Byfield reports at Linux.com that a Swedish developer, Goran Fransson, has 'given a deposition in the Barracuda-Trend Micro case that appears to seriously undermine Trend Micro's patent on gateway virus scanning.' Gransson has resurrected a product (still in its shrinkwrap) sold by Ten Four, the company he worked for at the time, to prove that it provided gateway virus scanning in January 1995. Trend Micro's patent application was filed in September of that year. If you were — or worked for — a Ten Four customer during 1995, you might be able to help Barracuda prove that Trend Micro's patent omits prior art." We discussed this important patent case when it was filed in January. (Slashdot and Linux.com share a corporate overlord.)

Gransson...

I like how Goran Fransson was shortened to Gransson. Very economical of our editors.

did you see the byline?

Posted by kawson on 17:19 Monday 23 June 2008....

Why it's important for customers to come forward

For those who didn't RTFA:

Fransson's deposition may be enough in itself to torpedo Trend Micro's case and patent. However, he suggests that the next move is to find the remnants of TenFour's American customers.

"I could give general information about how the product was used," he says, "But the details I can't recall. I can't say that this customer used it in this way in 1995. I remember some of the customers I was talking to, but I can't place those phone calls to a specific date or anything like that."

The problem, as he says, is that many of those companies no longer exist, and that many of his contacts have probably moved on in the past 13 years. Still, he remains optimistic. "Anybody who bought the product from the first of January 1995 to September 26th, 1995, and started using the product then -- those are the ones we're interested in getting a hold of."

His testimony alone might well be enough to kill this patent, but it would really be helpful for people who actually used the software to come forward. I'm just not sure there's much incentive for people, so hopefully someone will see the buzz about this case and come forward on principle to stop what Trend Micro has been trying to pull.

Posting to Slashdot was certainly a good way to get attention though. I never used the product, but hopefully one of you out there did!

Re:Why it's important for customers to come forwar

Ok correct me if i'm too dense but...

What the article means is that even if the software was suited to do gateway virus scaning, since there is no proof that no one used it that way, then it doesn't count as prior art??

That's like someone using a car to demolish houses by smashing it at high speed against them and claiming that you have patented it as a new device, and since no one used it that way, you have a legit patent.

(complimentary car analogy included for the ease of understanding, i had a better one with a hammer used as a new "masage" device, but you know, cars are so much better)

Re:Why it's important for customers to come forwar

IANAPL (I Am Not A Patent Lawyer) so someone else might be able to answer you specifically. I just would like to see as much testimony as possible because I don't necessarily trust the courts to make informed decisions in these cases, as we've seen so many times. Basically, the more the merrier! It doesn't hurt to provide a huge preponderance of evidence.

Re:Why it's important for customers to come forwar

ILTUAATSIOIFATNTTS (i love to use acronyms and then spell it out in full anyway therefore negating the time saved) :o)

Re:

If I understand correctly, it's not that Fransson's evidence may not be enough so much as that, the more evidence, the better. Considering the time, effort and money put into such cases, you can't blame Barracuda for taking no chances. - nanday (Bruce Byfield)

Re:

It used to be the case that "obvious" was considered to mean "somebody did it or talked about it already" instead of meaning, well, "obvious". Before this was corrected (fairly recently, I believe there were a couple of articles here), what you're saying would have been correct. Now, they can argue about obviousness and probably win. But there's a second requirement where you can't patent something that someone else invented long enough previously. Determining this is much more clear-cut that determining wh

Re:Why it's important for customers to come forwar

I didn't know it was necessary to prove usage in a particular way to kill a patent. The logic seems off to me, if he can prove he has a certain product that did a specific thing before 1995 (and I'm certain he can resurrect a few 1995-era computer boxes and operating systems (Windows 95 or NT 3.5, DR-DOS 7, Novell Netware 4)).

If you really have to prove usage, the patent system would be really off (well it already is, but further than you can imagine) since to get a patent and file a lawsuit you only need t

Re:

I don't think that it is necessary to prove usage. However the filing date is not the same thing as the priority date. The filing date is a 'default' value for the priority date; if the inventor kept a good notebook on when his idea occurred it may well be possible to establish a priority date early enough to eliminate this prior art candidate.

Re:

very true. first to conceive in the US, not first to patent. If they can show a signed, dated notebook detailing the invention (because we all know software developers keep bound laboratory notebooks) that sets the invention date before the release of the software, then things could differ. At least, that's with infringing patent suits. Not sure if it works the same with regard to prior art and single patent validation.

also, international laws differ, but i believe in the US you have 1 year from the da

Fine the bastards

Know what would stop these nonsensical patent claims? Massive punitive damages. Hit trend with a $30M fine if they are found to have made a patent claim that turned out to be obviously bogus. But I'm kidding myself. Congress who could stop this tomorrow doesn't give a damn. What do McCain, Hillary or Obama say about runaway patents. Not a damned thing.

Re:

Hit trend with a $30M fine if they are found to have made a patent claim that turned out to be obviously bogus.

"Obviously bogus" is a standard legal test. Fact is, you have no way of knowning if it is a nonsensical patent claim or not. At least, you haven't given any indication of knowing. If by "nonsensical" you mean predated by prior art, it would seem hard to prove that they should/did know of the prior art's existence.

Fact is, litegation between two parties who care reduces the cost of patent appro

patents and obviousness

Fact is, you have no way of knowning if it is a nonsensical patent claim or not.

Yes he does if he is an expert in the field. In fact this is the only group which can say whether a patent is obvious

Having experts review patents would help, the problem with this though is the costs. An expert in the field would make more money working in the field than they would as an examiner. Patent application fees could be raised but this could have the adverse effect of preventing people from patenting. There is a solution though. First disallow software patents, software is already protected by copyright. Secondly have patents terms last only a short tyme, say 5 to 7 years. After that if the patent holder wants to keep the patent then require them to pay a royalty, the first five year extension would cost say 5% of the average of revenue the product had generated the first five years. For a second five year extension they'd have to pay say a 15% royalty. Patent holders can then decide whether it's worthwhile to keep a patent or release it.

Another way to reform the patent system is to require patent holders to release a product utilizing the patents within a couple of years of the issue of them. They could either release the product themselves or license the patent to someone else who has released a product. If within 2 years if a product is not released the patent is released to the public, ie put in the public domain.

Notice when talking about keeping a patent I said a royalty on the revenue the product made not on the profit. By using revenue instead of profit, they couldn't use Hollywood accounting [wikipedia.org]. Then with a product needing to be released you avoid patent trolls.

Falcon

Re:

Hit trend with a $30M fine if they are found to have made a patent claim that turned out to be obviously bogus.

Yeah, that'd fix the patent system.

So if I come up with something in my shed at home, apply for a patent and succeed, then "Big $ Patent Trolls R Us" find some prior art in their extensive portfolio, they could sue me into oblivion, tear down my workshop, spit in my breakfast cereal and have me locked up for failure to pay punitive damages. I would of course feel that to be entirely justified bec

Re:

A virus is a virus. Scanning for one happens on a computer of sorts. What does it matter if I scan my files, your files, or files I have yet to send to you?

It doesn't deserve a patent because it's like patenting "X... on a computer", "X... on the internet", or "Virus Scanning... on a gateway".

The idea that anyone thinks this is patentable, in any form, is such a major joke.

Please don't blame the patent examiner

Don't blame the patent examiner on this one there is only between 8 hrs (most experienced) to 16 hrs (least experienced) to find prior art and then reject all the claims (time is not adjusted for extra claims). The largest source of prior art for an examiner is prior patents which for software/business methods it is lacking. The secondary source is non-patent literature or anything else you can find and I doubt there is barely even a trace of the program existing on the internet today. In fact based on the issue date (1997) the patent examiner may have only had old patents available in filing cabinets and whatever books he had! I mean 1997 I was still in HS logging onto the internet on 28.8, and surfing the web through lynx and there was no google.

Think of examiners as gate-keepers. Some things may slip through, but the bad patents will get mowed down by companies that can hire 5 people to search for 5 weeks.

Re:Please don't blame the patent examiner

Perhaps if software patents were immediately outlawed, we'd solve this particular problem. Because the US and some other countries have so stupidly decided to allow the patenting of this sort of thing, we have absurd cases like this.

As it stands, I knew a number of BBSs back in the late 1980s and early 1990s who were doing virus scans on files uploaded. Pretty much had to do. The only difference was that the transport protocol was X, Y, or Zmodem or Kermit. For all intents and purposes, TCP/IP is not really all that different than Zmodem, so there we have it, a gateway to a private network with virus scanning, probably at least four or five years prior to this.

I'll even go further and say that Trend Micro likely knew this, unless their software engineers were mental retards, so the company should be fined a few million bucks and banned for a decade from even calling the US Patent Office. They're intentionally trying to claim a patent on a concept that was years older than their crappy software.

Re:

Don't blame the patent examiner on this one

Why not? He's taking home a paycheck on what is basically a fraudulent activity, claiming to assess prior art when it's humanly impossible with the resources he has at his disposal.

His negligence has directly created a multi-million (?) dollar lawsuit. At the very least he should be fired. With a rational legal system it would've been possible to sue him for damages as well so that he does not have a perverse incentive to abuse the system.

The whole idea of

Re:Please don't blame the patent examiner

I used Compuserve as an ISP and had a GeoCities page. What great times!

Usenet Announcement Post 15 Feb 1995

15 Feb 1995 in comp.groupware.lotus-notes.misc [google.com]

Usenet Tue, 25 Oct 1994

Tue, 25 Oct 1994 INFO: MS-Mail UUCP [google.com]: Includes details with SMTP and plugins for scanning documents

Re:This is absurd. BBS anyone?

That's not the way prior art works. Patents cover methods, not ideas. So a method that applies an old idea to a new situation can indeed be patentable. If you work for IBM, or some other company that has a bonus scheme for patent filing, one way to come up with shit to get patented is simply to make a list of all the new technologies out there and figure out how to apply old ideas using them.

Re:

Welcome to the broken patent system.

Why do you think so many things have clocks in them?

Re:other prior art...

They do publish source [barracudanetworks.com]. On that page, I found a link to the complete source [barracuda.com] of their Linux distribution.