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Trend Micro patent claim provokes FOSS community, leads to boycott

By Bruce Byfield on February 11, 2008 (7:00:00 PM)

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Trend Micro might insist that its patent case against Barracuda Networks isn't about free software -- but try telling that to the free and open source software (FOSS) community. Since Barracuda Networks went public about the case last month, it has heard from "a tremendous number of individuals" according to Dean Drako, Barracuda's president and CEO. Even more significantly, announcement of the case has led to a boycott against Trend Micro.

The case is an attempt to enforce Trend Micro's patent for antivirus detection on an SMTP or FTP gateway. Already successfully used against such companies as McAfee, Symantec, and Fortinet, the patent is being applied against Barracuda for its distribution of Clam Antivirus (ClamAV), the popular FOSS antivirus program, with its hardware products. The case began when Barracuda sought a declaratory judgment in March 2007 after receiving a series of letters from Trend Micro in 2006-2007. Trend Micro responded by a filing with the American International Trade Commission in November 2007, claiming that ClamAV was being imported on the grounds that many of its contributors are from outside the United States. The schedule for the case is expected to be announced by the end of this month.

Comments and reactions

Since Barracuda publicized the situation on January 29, both the company's inbox and the blogosphere have been overflowing with responses -- some negative or neutral, but the great majority supportive. The fact that at least one commenter in Barracuda's legal page requested that their name be withheld to avoid coming under attack themselves suggests how seriously the FOSS community is taking the situation. However, amid this concern, many manage to give additional insights.

Some of those who contacted Barracuda suggested prior art -- documents that would prove that the idea of gateway antivirus existed before Trend Micro applied for its patent in 1995. "We have already received about 20 prior art submissions, many of which appear at first inspection to be very relevant," Drako reports.

Many of the responses expressed concern about the possible impact of the case on the FOSS community. Justin Mason, the creator of SpamAssassin, blogged that "Trend Micro's actions are clearly an attack on free and open source software and its users, as well as on Barracuda Networks.... Given Apache SpamAssassin's prevalence in many anti-spam mail filtering appliances (including Barracuda!), this is a very worrying precedent for us -- our product could be next."

In the same vein, Pamela Jones of Groklaw wrote, "I think it's another attempt to attack the FOSS development model and force those using such software to pay the proprietary dudes a tax. That's the same dream that SCO started with, and Microsoft shares the dream. A lot of proprietary software folks realize the sun is setting on their business model, and they would like a piece of what is replacing it.... If ClamAV is not successfully defended, I think there may be an avalanche of this kind of attack, proprietary vendors looking for some silver to cross their palms from anyone using FOSS software."

To these general concerns, Mark Gibbs of Network World raised the concern of the case being heard by the ITC. "If the ITC should decide Barracuda is infringing Trend Micro's patent," Gibbs wrote, "then anyone with intellectual property can start legal proceedings through the ITC against someone who uses FOSS that has any development done outside of the United States. The big risk here is that the ITC's judgments may be more damaging and restrictive than those of US courts, making the role of FOSS in the market far more complicated and less effective."

Other comments focused on the flaws that the case revealed in the US patent system. Emily Berger, an Intellectual Property Fellow at the Electronic Frontier Foundation, described the case as a "bogus patent claim," implying that it was too obvious to be patentable. In much the same way, Gibbs described the patent as involving "something so blindingly obvious," while Justin Mason, in the same post as quoted before, describes the patent as one that "covers a trivial method, one which was obvious to anyone skilled in the art at the time the patent was written."

As might be expected, posters on Groklaw were particularly expansive on this aspect of the case, joking about the obviousness of the idea and decrying a system that allows the first filer to obtain the patent rather than the inventor. The general consensus on Groklaw was that the very idea of patents "needs to be thrown into the digital trashcan."

Still other observers expressed concerns about the implications for security in general. "More open source equals less spam and more security," Matt Assay wrote on CNET. "Trend Micro is effectively trying to raise the price of security. Take ClamAV off the market with its 1 million deployments at the gateway and 100 million-plus PCs will be less unprotected, or less protected." Pamela Jones raised the same concerns, arguing that "blocking FOSS antivirus solutions only makes the Internet more dangerous for everyone."

Finally, Jim Zemlin, the executive director of the Linux Foundation, commented on the short-sightedness of Trend Micro's efforts at patent enforcement. "A company that files a patent claim against code coming from a widely adopted open source project vastly underestimates the self-inflicted damage to its customer and community relationships. In today's world, all of our customers in the software industry are enjoying the benefits of a wide variety of open source projects that provide stability and vendor-neutral solutions to the most basic of their computing needs. I talk to those customers every day. They consider these claims short-sighted and those that assert them to be fearful of their ability to compete in today's economy."

Informal and formal boycotts

As if to illustrate the truth of Zemlin's remarks, some commenters announced their intention to avoid doing business with Trend Micro. On Information Week, CmonSpike wrote that, after reading about the case, "I will NOT be renewing our Trend AV licenses next year."

Similarly on the Ars Technica forums, another poster remarked that "I never advertised that Trend Micro has bad products; when asked about the company I normally would tell customers of mine that you couldn't go wrong with them. [But] my opinion is changed just knowing that they are trying to sue over an open source antivirus that I use on my home server and workstation."

These examples are both personal. However, on Friday, Dutch free knowledge and culture advocacy group ScriptumLibre called for "a worldwide boycott on Trend Micro products." In its news release, ScriptumLibre summarizes the case, with its chairman, Wiebe van der Worp, describing Trend Micro's actions as "well beyond the borders of decency." The ScriptumLibre site includes link to free graphics that supporters can add to their Web pages to show their support and a call for IT professionals that provides a links to help people to educate themselves about the case and suggests a series of actions that people can take in the boycott.

The boycott has already gained some key support. "I support the boycott and the Free Software Foundation supports the boycott because our community needs to take action against those who commit aggression using software patents," Richard Stallman told Linux.com.

Stallman notes that the Foundation does not use Trend Micro software, because it is proprietary. "Of course, not everybody is a free software supporter," he says. "But everybody who uses computers, whatever he thinks about the issue of free software, should be up in arms against software patents. We have to recognize that anyone who uses software patents for aggression is attacking all computer users."

Eben Moglen of the Software Freedom Law Center is aware of the case, and is considering a patent re-examination request or another intervention in the case.

Contacted by Linux.com, Barracuda's Drako acknowledged the array of reactions by saying, "We at Barracuda want to extend our thanks to the tremendous number of individuals who expressed support for our defending the use of ClamAV free and open source software, as well as to the community members that have submitted prior art."

If Trend Micro hasn't already, it is about to find out that the case is about free software after all.

Bruce Byfield is a computer journalist who writes regularly for Linux.com.

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Comments

on Trend Micro patent claim provokes FOSS community, leads to boycott

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Different motives, still bad

Posted by: Anonymous [ip: 24.118.103.73] on February 11, 2008 09:50 PM
I don't believe that Trend Micro intended to attack open source software. You'd think if they were going to launch an attack on FOSS, they'd have researched at least a little bit and found out exactly what happens when you do. No, I believe they just wanted even more money. They're already collecting from big names like McAfee and Symantec. Barracuda just seemed like an easy target for some extra cash, so they went for it. I doubt they had any idea of the Pandora's Box they were opening...

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 68.104.130.47] on February 11, 2008 10:34 PM
Very interesting timing on this. I work within the DOD, where this last fiscal year TrendMicro was cut out of the DOD wide blanket contract for anti-virus products. Essentially a single would entity would negotiate/purchase the licenses for a whole slew of their main product lines, then any DOD administrator or user could download and install. If I remember right this was worth several millions dollar, and was a multi-year contract. I do not know the reason for them being cut out, but I do know for a fact McAfee is still on this contract as that's what we moved to. Again, sure is coincidental that they lose a major DOD contract and now they resort to litigation. You be the judge...

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 90.193.237.191] on February 11, 2008 11:14 PM
The Free Software Foundation is also supporting this boycott - http://www.fsf.org/blogs/community/boycottTrendMicro.html

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 213.228.178.7] on February 12, 2008 03:22 AM
I think that things like this are an open and big oportunity to the other nations where software patents aren't valid.
Like European Union.
This is the start of what i being said from years: America is going down!

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 91.12.123.251] on February 12, 2008 09:15 AM
Trend Micro has shown little innovation over the last years. Squeezing money out of old patents is an evidence of incapacity.
Anyway, hopefully this boycott wakes them up before it comes to a bad end!
Man, that's sad! Trend Micro has been an insider tip for best of breed security software, they had innovation leadership in former years...

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 77.237.111.163] on February 12, 2008 11:07 AM
What does the boycott of FOSS community means ? How many potential Trend Micro customers belong to FOSS community ? What will be the loss caused by the boycott. I am writing this from the Linux machine, just for the record. Please, people, try to remain in real world. Daydreaming is not going to solve anything for anybody.

DG

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Re: Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 161.28.254.65] on February 12, 2008 03:55 PM
I think lots of FOSS IT people have to support hybrid networks.

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Trend Micro patent claim provokes software community, leads to boycott

Posted by: Anonymous [ip: 82.197.200.127] on February 12, 2008 11:27 AM
Since about everybody on this world uses free software one way or the other, it seems a bit weird to make the point that it's about every kind of software.
The thing is: they are just parasiting on others that use or have developed good software themselves open or not. Since software patents are *always* "obvious to peers", pointing that obviousness out is mood.
Anyway: this just points out: if you are using free or commercial software, as a user you are always liable for the software you use. Parasites will always feed where they can get feed the most without getting in trouble too much (much like darwins law :-) ).
The only thing we can do against (software-)parasites is to kill any legality on patents on software.

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Re: Trend Micro patent claim provokes software community, leads to boycott

Posted by: Anonymous [ip: 132.33.132.19] on February 14, 2008 10:00 PM
This is the biggest misconception on the planet. Most computer users NEVER use "free" software. They use what came with the computer and anything they might have added to it, or what their work puts on it. The point of the entire FOSS movement is to CHANGE that.

My computer here has:

Windows XP
Office 2003
Acrobat Pro
Symantec AV
and a few other odds and ends that have support contracts from the vendors

None of this is on here because I *want* it on here, it's on here because my employers put it on here. I also work DoD space, that's about 8,000 computers at my location which has zero free software on it.

My home computer, doesn't have much differant:

Windows XP
Office 2003
World Of Warcraft =)
Symantec AV (Provided by work)
Firefox
iTunes (I have an iPod)
Photoshop

I can't stand GiMP, Open Office is still slow and bloated, but I do have Firefox because it meets my needs. I don't run Linux because I like playing video games, and wine/whatever still isn't there yet so not even a consideration.

When the FOSS alternatives exceed the commercial versions like Firefox did, you'll be able to say everyone uses it, but for now it's still a very SMALL percentage of the computer world using it.

I'd love for that to change sooner than later, but when big companies have millions to throw it the problem vs a small team of developers doing something in their spare time, it will continue to be an uphill battle.

Now if you want to talk servers, sure that's a totally differant story =)


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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 67.63.214.178] on February 12, 2008 02:07 PM
How'd Trend Micro get a patent on that? People were doing that well before Trend even came on the scene! I thought you couldn't patent things that people were already doing (since it's obviously not a new idea)?

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 71.188.32.145] on February 12, 2008 02:47 PM
I'm writing this on a linux machine as well, Everything on this pc is free and open source. I WILL NOT pay the greed tax. My heart is with the FOSS community. I pay to help support the FOSS projects. In a basket of Nice Red Apples there will Always be one BAD apple. Our community is strong enough to rid this apple if need be and move on. We will always be the leaders not the exceptions...........

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 159.33.10.92] on February 12, 2008 03:22 PM
Try to send letters to Dell, HP, etc. which can cancel their distribution contracts with Trend Micro.
It can hit bully more, than a users protesting.

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 12.34.246.35] on February 12, 2008 04:50 PM
Per the piece, all and sundry are up in arms against Trend Micro. But it appears to me that Trend Micro is a victim here -- because it attempted to enforce a patent it legally obtained. Are the boycotters saying that they don't subscribe to US law? The impression being created that Trend Micro is a black sheep in a group of great corporate citizens may paint an incorrect picture. US Corporations take their interest first before any other interest -- the consumer's interest is way down and counted only when it alligns to the Corporate's interest. Since the Corporate's interest at most times seems to be to get more money for the same goods, and consumers interest would be to get more goods for the same money -- the two interests are in direct conflict at most times. Trend Micro has executed a business decision utilizing a benefit it has per US law, like every other corporation around. I am sure a majority of folks commenting on this issue are employed by corporates and therefore are also party to or directly involved in this form of behavior in some other situation. Therefore, in my opinion, this problem stems from the system where Corporates exercise great power and influence on society and progress but zero accountability if they screw up. Also, any attempt to patent common knowledge needs greater oversight. Lawyers and the legal profession in the interest of money simply contribute to make this process lose common sense. Any request to patent ideas and concepts should be looked at by the patent office with ultimate skepticism and patents granted only in the rarest of scenarios.

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Re: Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 171.161.160.10] on February 12, 2008 08:53 PM
>> But it appears to me that Trend Micro is a victim here -- because it attempted to enforce a patent it legally obtained. Are the boycotters saying that they don't subscribe to US law?

The issue is whether the patent they are trying to leverage is actually enforceable, given the apparent amount of prior art. Like too many firms in the current tech market, they appear to be trying to pry money from their competitors via dubious patent portfolios rather than earning it from customers by building desirable products. Many firms will settle rather than become entangled in lengthly, expensive litigation. In this case, like the SCO debacle, the F/OSS users have become energized by the perceived threat to their community.

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Trend Micro admits via patent claim that their products suck.

Posted by: Anonymous [ip: 64.216.74.20] on February 12, 2008 05:02 PM
The simple fact is that if Trend Micro's products were able to compete, they wouldn't have to pull this B.S. The real conclusion inferred from their actions should be that their products are total crap.

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 63.148.8.34] on February 12, 2008 08:01 PM
As an IT Director for a small business, (300+ staff, 50+ servers), I was going to purchase TM as our next AV. That purchase will no longer happen.

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 70.5.9.42] on February 12, 2008 09:33 PM
A boycott is just BS. Trendmicro is NOT attacking FOSS, they're attacking another commercial entity who has infringed on their patent. Barracuda is trying to play the victim here and use PR as a weapon. They know how easily the FOSS community will jump to these wild conclusions and make loud but ultimately empty threats like this "boycott". If anything, I would boycott Barracuda for trying to abuse the FOSS community in this way.

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Re: Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 116.71.219.138] on February 13, 2008 04:45 AM
"A boycott is just BS. Trendmicro is NOT attacking FOSS, they're attacking another commercial entity who has infringed on their patent. Barracuda is trying to play the victim here and use PR as a weapon. They know how easily the FOSS community will jump to these wild conclusions and make loud but ultimately empty threats like this "boycott". If anything, I would boycott Barracuda for trying to abuse the FOSS community in this way."

I am sure Barracuda wants to benefit itself out of this, but when it comes down to it, TM is attacking ClamAV which is open source. Of course they have to do it through a proxy, Barracuda (and this is who they want to get money from), but in essence, if they win, ClamAV will be determined to be a patent-violating application, that will no longer be 'free" to use in corporate and other legitimate environments.

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how funny

Posted by: Michael Shigorin on February 12, 2008 09:46 PM
I've recommended Barracuda a few days ago; I won't recommend Trend Micro after reading up on their signature of impotence.

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 87.51.255.150] on February 12, 2008 10:19 PM
I just thank God for letting me live in Europe. I run GNU/Linux, Ubuntu, and have no AV installed, haven't had for more than a year. But IF I should decide to install one it will absolutely NOT be a Trend Micro product. Never liked their software anyway.

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 87.81.163.35] on February 13, 2008 10:36 PM
How are a bunch of Linux users who never use AV software (and if they did would probably never pay money for it anyway) going to boycott Trend Micro?

You can't not use something even more than you don't use it at the moment. I suspect Trend Micro are having a good laugh at this.

Until paying customers are affected, this is nothing more than bluff and bluster.

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 189.6.61.8] on February 14, 2008 02:05 AM
I am a paying customer of Trend Micro software. 90+ servers, 600+ users. I was using Trend Micro Office Scan as our main antivirus software. Not anymore. Laugh at this.

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 210.49.113.171] on February 17, 2008 01:50 PM
What is wrong with you people? Stop playing WoW, turn off your PC and get into the real world. If you had a patent would you not want to protect it? Think of how novel a post-it note is, a bit of glue on a piece of paper but 3M went to great lengths to protect it to earn as much as they could because - wait for it - they invented it, no matter how simple it may now seem. How novel is Amazon's One-Click-Buy patent, but because it's not on the FOSS agenda no one cares. All i'm saying is these are everywhere, if you invent it, patent it. Simple.

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Re: Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 125.60.240.202] on February 18, 2008 11:49 PM
The FOSS Community is simply defending that there are prior art to the patent claimed by Trend Micro. Are you really in the real world?

Barracuda is using FOSS and patent claims are directed on those softwares .... no matter how much Trend Micro wants to put it... it's a war against FOSS .... and anybody who says otherwise is playing too much Mario Brothers in Dreamland....

;)


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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 66.112.204.2] on February 21, 2008 04:42 PM
This is a junk patent and everyone knows it. If you think Trend Micro is justified in this move, then you're not really a geek. You're one of those 'I don't know how it works so I'll pay someone else to do it for me' everyday average Joes. I don't mind those people. But when you take foundations of technology and mix and match to make your own ideas come into fruition (and complex ideas, not simple ones like smtp virus filtering, which btw, I highly doubt Trend Micro invented) as many people do, you're helping innovation. Trend Micro is attempting to stifle innovation. It's like patenting flour then suing Betty Crocker. The patent office would laugh at it. But because they're highly ignorant of what 'smtp virus filtering' really is, people like Trend Micro are allowed to make a quick buck off of other people's ignorance.

Google took common ideas, common foundational technologies (freely available commodity-sorts) and made their own complex recipe for success. Trend Micro is trying to stop those of us who aspire to do the same from doing so. It's disgusting and disturbing.

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 61.93.246.97] on February 23, 2008 05:30 AM
maybe TM already having financial problem underneath......then do such thing to try to survive.....
from "investors" or from "buyers" (just like SCO case).....
SCO finally got nothing and be nothing
may the force be with u......
all the same....

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Trend Micro patent claim provokes FOSS community, leads to boycott

Posted by: Anonymous [ip: 76.26.218.209] on February 26, 2008 06:43 PM
Good for them. This just makes me want to renew my Trend Micro AV for another year or two. Just because you're open sauce doesn't mean you can sit there and steal other peoples patents. Frankly, the whining and QQ'ing of various open saucers is music to the ears of people who use real software. You stick to your GIMP and Open Office, and ClamAV.

I'll stick with Photoshop, MS Office, Trend.

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