The Patent That Refuses To Die

Trend Micro continues to try and resurrect a dead and invalid patent

Back last June I wrote about the infamous "600 Patent" being asserted by Trend Micro. The patent granted in 1995 was used by Trend to extract licensing fees from just about every vendor who sought to offer a gateway AV product. Some of the battles over the 600 patent were legendary. Many believed that the patent was invalid and that there was prior art of the technology before Trends use. However, some of the biggest names in the security industry found it easier to pay than fight.

One of the biggest battles was between Trend Micro and Fortinet. But even that ended in a settlement prior to a definitive finding on the validity of the patent. But the beginning of the end for patent 600 was when Trend went after Barracuda Networks for their use of the open source ClamAV in their UTM appliance (BTW, Barracude joined the growing list of security companies being hacked yesterday. I wrote about it in my Ashimmy, After all these years blog, and you can read about it here).

Barracuda appealed to the open source community for help in proving prior art and the community responded. The folks at Groklaw did a great job gathering and presenting the evidence. The International Trade Commission (where Trend sued Barracuda) had a staff attorney issue an opinion that the patent was indeed invalid. Based on that opinion Fortinet applied to the US Patent and Trademark office to have the patent formally declared invalid.

According to Patrick Bedwell's post on the Fortinet blog, in December 2010 the USPTO"issued office actions on the two related Trend Micro patents (5,623,600 and 5,889,943), rejecting every claim as invalid". So finally it would appear that the 600 patent would die.

But no like a bad Hollywood sequel, Trend is going back one more time. This past month they have filed a response to the office action that claims the USPTO, the ITC, Fortinet, Barracuda and the open source community are all wrong. Trend has hired an "expert" that claims the prior art that has been turned up is not valid.

To say the logic here by Trend is flawed is probably an understatement. If you are a fan of this kind of legal wrangling, here is a list of links on the legal documents from the Fortinet blog post:

We’ll let the filings speak for themselves:

http://www.fortinet.com/legaldocs/Trend_600_Patent_Amend_and_Response.pdf 

http://www.fortinet.com/legaldocs/Trend_943_Patent_Amend_and_Response.pdf

http://www.fortinet.com/legaldocs/Trend_Expert_Declaration_John_Mitchell.pdf

Other links to other related filings in the case that may be of interest:

http://www.fortinet.com/legaldocs/March2011_600_Patent_Reexam_Request.pdf 

http://www.fortinet.com/legaldocs/June2010_600_Patent_Reexam_Request.pdf 

http://www.fortinet.com/legaldocs/July2010_943_Patent Reexam Request.pdf 

http://www.groklaw.net/article.php?story=20080702120816358&query=trend+micro

http://www.groklaw.net/article.php?story=20080125135544713&query=trend+micro

I find it a shame that all of this time, effort and money has been wasted on this. If these resources could have gone into security R&D, maybe Trend could have come up with something new that could help keep us all more secure and could be actually patentable if they insisted.

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