Trend Micro Sues Barracuda Over Open Source Anti-Virus

Anti-virus firm Trend Micro is suing Barracuda Networks over their use of the open source anti-virus product ClamAV. The issue is Trend Micro's patent on 'anti-virus detection on an SMTP or FTP gateway'. Companies like Symantec and McAfee are already paying licensing fees to Trend Micro. Groklaw carries the word from Barracuda that they intend to fight this case, and are seeking information on prior art to bring to trial. Commentary on the O'Reilly site notes (in strident terms) the strange reality of patents gone bad, while a post to the C|Net site explores the potential ramifications for open source security projects. "Barracuda has been able to leverage open source to bring down the cost of security. Early on Barracuda was blocking spam and viruses at roughly 1/10 the price of the nearest proprietary competitor (that was only selling an antivirus solution). Barracuda has helped to bring down prices across the board, and it has been able to do so because of open source. More open source equals less spam and more security. Trend Micro is effectively trying to raise the price of security." Slashdot and Linux.com are both owned by SourceForge.

Comments

Yes

[niceone]

Trend Micro is effectively trying to raise the price of security

Um, that's what the patent system is supposed to do - to make it worthwhile investing in inventing things! Whether this is a reasonable thing to patent is another question, but you can't really complain about the patent system doing what it is meant to do.

Re:Yes

[hey!]

Well, to be more accurate, what the patent system is supposed to do in a case like this is lower the net costs of security, and then reward the inventor by diverting some of the savings to him.

In theory it works like this. Your company is losing $10 million dollars a year because of lack of security. Fixing the problem would cost you $5 million. The inventor comes up with something that you would not have, that cuts the cost from $5 to $1, and he splits the savings with you. He walks of with $2M, you save $2M over doing it yourself of $8M over not doing anything.

It all breaks down when the patent system issues obvious patents of the form "apply well known technology X in common context Y." In that case, you (or somebody you hired) could solve the problem for $1M. The patent doesn't represent two million dollars of new savings, it represents a million dollars of new expenses.

Re:Yes

[smilindog2000]

In short, you can't violate a patent in your head. You should not be able to violate a patent by typing. This is the simple dividing line between the good and bad patents I see scrolling across slashdot. We let Microsoft and other big American companies con Congress into this, and the rest of the world isn't dumb enough to go along. Sooner or later, we need to fix this... every year it hurts our competitiveness.

Re:Yes

[troll -1]

Respectfully disagree.

The patent system is *not* supposed to raise the price of security.

The patent system is supposed to:

To promote the Progress of Science and useful Arts [source: US Constitution, Article I, Sec. 8.

Making a profit from something as obvious as putting a filter in a firewall does little or nothing to achieve this goal. The largest patent holders (including IBM and Microsoft) all agree the system needs reform. But patent reform is a lot like campaign finance reform, everyone agrees there's a problem but no one really has anything they can realistically take to congress.

Re:Yes

[radarjd]

Well, to be more accurate, what the patent system is supposed to do in a case like this is lower the net costs of security, and then reward the inventor by diverting some of the savings to him.

That may be the economic theory, but I don't think it's necessarily the legal theory. Legally, the patent system is supposed to induce inventors to create new processes, materials, machines, etc. and to disclose their inventions so that they will eventually be owned by the public. Something often lost on the discussions on this site is that any patented invention will become public domain. In 20 years, potential patent holders will have to overcome this "land grab" of patents that we're currently experiencing. The broader the patents now granted, the more difficult they will be to overcome in the future.

I personally believe that the current problem with our system is that the patent office (due in large part to a decision by the Supreme Court) didn't grant software patents (in the form of business method or machine patents) earlier. Had the land grab happened thirty years ago, and the patent office learned to deal with it then, this all would have been worked out by now. The hobbyist software creator didn't exist in large part thirty years ago, and the fights would have been between large companies like IBM and its challengers.

The case referred to above was Gottschalk v Benson 409 US 63. The Court held that mathematical expressions could not be patented, and essentially found that all computer programs were mathematical expressions. The patent in question was for a bit shifter (converting decimal numbers into binary). IMO, we would be better off today had they simply found the patented material to be obvious, which is what many amici suggested.

Re:Yes

[Flambergius]

Well, to be more accurate, what the patent system is supposed to do in a case like this is lower the net costs of security, and then reward the inventor by diverting some of the savings to him.

Sort of, yes, but mostly, no. (Or you are just be using "net cost" loosely.) Patent system isn't supposed drive down prices, it is supposed to drive up the benefits. Patent system also only works over time, sometimes quite a long time. One can't really make any claims or observations about the patent system at any single point of time. (Don't judge a function by its value, but by the value of its derivate. :-))

The mechanism by which patent systems drives up benefits is broadly that sharing innovations speeds innovation. There is a steep cost in giving monopolies to any one actor. In theory, innovation is a cumulative process and the cost is constant, so valid patents usually end up positive. Keys to validness of a patent are of course novelty and non-obviousness. The '600 patent seems to fail here.

Re:Yes

[Alinabi]

But patent reform is a lot like campaign finance reform, everyone agrees there's a problem but no one really has anything they can realistically take to congress. The congress is there to represent the People, not to rubberstamp bills crafted by corporations. As such, there is no need for them to wait for the private sector to take the initiative. They should just sit down, on their enlightened, elected asses, and come up with a law that really promotes the "Progress of Science and the useful Arts".

Re:Yes

[rben]

>The hobbyist software creator didn't exist in large part thirty years ago

Damn, I just vanished in a puff of logic!

Re:Yes

[eurleif]

You should not be able to violate a patent by typing.

What if I type out code to program a robotic arm to construct a patented physical object?

Re:Yes

[prelelat]

Mario was a great inventor coming up with all sorts of ideas. As time went on Mario couldn't keep up with all of his ideas, he didn't know what to do. So he wrote down the process that he used to come up with those ideas so that he could hire others to think things for him so that he wouldn't loose his ideas. Weeks after this started employees quit working and started their own inventions using Mario's method of creating.

Mario was furious and went to court he won, he had prior art. So after that he filed for a patent on all of his ways of making ideas. Mario now owned any intelligent thought. He renamed it Mario's idea machine, people had to pay him an annual fee of 200 dollars to have 2 good ideas a year, anymore and they would have to purchase extra licenses at a greater cost. Mario no longer had to have ideas of his own, he had a workshop of idea people, and the whole world had to pay him to have ideas. But there was a problem, no one wanted to have ideas because they couldn't afford to have them. People became stupid as having good ideas was no longer an excepted thing to do. The people in Mario's shop never came up with new and exciting ideas anymore because they were too busy fighting lawsuits against people who had ideas such as the pirate brain. The world stopped, hunger set in, the population decreased. Finally when the patent was about to expire Mario's great great grandchild had a great idea, extend the patent another 10 years. The law passed, only because by this time it was only accepted to have stupid ideas, seeing as how all the good ideas cost money.

Finally the patent expired, all that were left looked like mindless cavemen. They lived in shells of homes, with little to know food. All that was spoken were grunts, people had been afraid litigation for so long they were afraid to say something smart. Forest and animals have overgrown most of the cities, people had been living off of canned spam for years.

Moral of the story is stupid patents ruin society, stop it.

Re:Yes

[FredFredrickson]

Had the land grab happened thirty years ago, and the patent office learned to deal with it then, this all would have been worked out by now. The hobbyist software creator didn't exist in large part thirty years ago, and the fights would have been between large companies like IBM and its challengers. True that. Seriously, folks, who's got the patent on operating systems? Software that interfaces with hardware for you? That would be great. Software patents work great until it's something obvious that shouldn't be patentable, but who draws the line? That's what we're arguing here. An antivirus on an smtp or ftp gateway? In what way is that any less obvious than an operating system?

I'm going to patent writing data to hard drives, and make millions off this system in the name of progress.

Re:Yes

[malkavian]

You can happily copyright the code, but shouldn't be able to patent it. The physical object would still be patented.
You don't violate the patent on the object just by typing the code, or even executing it. You violate the patent by actually having the robot arm create the final object. You could run the code to your heart's content if it were operating in 'test' without creating the final object without violating the patent.

Re:Yes

[BSDimwit]

Corporations are often afforded psuedo-personhood under the law. Until this is repealed, corporations enjoy much of the same rights as a real person does, including giving money to candidates who run for office(moveon.org), endorsing candidates who run for office(New York Times), etc. I for one would love to see the day where corporations are not considered to be persons in any way, including paying taxes(all the profits go to someone and would be taxed at the personal level anyway), or sheltering guilty executives from liability when their decisions cause harm to actual people. Don't get me wrong, I am not anti-business... but I don't think its wise to grant rights of any kind to a non-person.

Some might contend that this limits freedom of speech, but I don't feel the rights as outlined in the Bill of Rights should be extended to unreal entities.

Prior art?

[initialE]

Why not say that this behavior is the inadvertent result of placing 2 products, an SMTP gateway, and an antivirus client, side by side on the same server? the gateway stores the mail in a temporary store, whereupon the antivirus just happens to sanitize it, before the mail is again sent on it's way. This is obviousness in the extreme.

Re:Prior art?

[Thanshin]

Why not say that this behavior is the inadvertent result of placing 2 products, an SMTP gateway, and an antivirus client, side by side on the same server? A lot of processes can be simplified in such way and still are original. A decision has to be made even if a process seems obvious after being "discovered".

Re:Prior art?

[_KiTA_]

Why not say that this behavior is the inadvertent result of placing 2 products, an SMTP gateway, and an antivirus client, side by side on the same server? the gateway stores the mail in a temporary store, whereupon the antivirus just happens to sanitize it, before the mail is again sent on it's way. This is obviousness in the extreme.


That's a good idea, you should patent it.

"Virus scanning of cache and temporary files before end user utilization."

Bad news for a lot of us

[jimicus]

There's a lot of mail admins out there - and a lot who consider a quick & dirty mail relay running Linux and ClamAV to be a pretty good first line of defense against email-borne trojans and virii. Seeing as ClamAV doesn't have a daemon mode, and end users in any large organisation can seldom be trusted to run their own AV scans as required[1] that's pretty much the biggest use for it.

[1] Yes I know all you geeks might be OK. But you're not the sort to open every silly email you receive. The receptionist who forwards all the "Look Out for the Terrible Good Times Virus!!!111OMGWTFBBQ" emails she receives is, and if she could be relied upon to follow good computing practices, we wouldn't need AV software in the first place.

Re:Bad news for a lot of us

[j-turkey]

There's a lot of mail admins out there - and a lot who consider a quick & dirty mail relay running Linux and ClamAV to be a pretty good first line of defense against email-borne trojans and virii. Seeing as ClamAV doesn't have a daemon mode, and end users in any large organisation can seldom be trusted to run their own AV scans as required[1] that's pretty much the biggest use for it.

ClamAV does have a daemon mode. Are you thinking of a local Windows client? Realtime filesystem scanning?

Re:Bad news for a lot of us

[kc8tbe]

ClamAV does have a daemon, it just doesn't have on on-access scanner for Windows -- yet. The people over at Clamwin http://www.clamwin.com/content/view/35/27/ are working on one. Linux users interested in on-access scanning should look up Clamuko, but then if you run Linux you probably don't need an on-access virus scanner...

Re:Bad news for a lot of us

[bleh-of-the-huns]

While your statement is true, there is a huge difference between what everyday admins are doing within their organization and what Barracuda is doing. Barracuda are packaging clamav and selling it as a product (regardless of the merits or lack their of of this lawsuit).

Also, while I do believe the patent is overly broad, this is what the patents are for. It is not like Trend Micro is a patent hoarding firm, they do make products, in fact they actually make products that relate to the patents they hold, so I view them slightly better then I view Minerva Industries.... (the smartphone patent)

Prior art or obviousness?

[Anonymous Coward]

Can we really be bothered to break out those archived procmail scripts? We're talking about a functional equivalent of a unix pipe; novel or inventive -- I think not!

Go barracuda!

Re:Prior art or obviousness?

[ElBeano]

AC is exactly right. This isn't worthy of a patent. Convincing the court of this will nonetheless require educating people who are likely to be clueless as to WHY this is obvious. To those who disagree, please tell my why this deserves a patent and why any sane admin wouldn't think of it without Trend Micro's help?

MIMEsweeper prior art

[RupW]

From TFA (the Groklaw article):

We also believe that a product called MIMESweeper 1.0 from a company called Clearswift, Authentium, or Integralis anticipates several claims of the '600 patent. We have yet to locate a copy of this product and would appreciate anyone who has a copy sending it our way. Yes, Clearswift currently own MIMEsweeper although Clearswift didn't exist back then - they're a merger of several firms who had similar products.

They're not hard to find. Why not just ask them?

Granting frivolous patents should be punishable

[Thanshin]

The people who grant patents should be liable to be fired for gross incompetence?

If I file a patent for the process of giving names to children so they can be distinguished and it's granted, is there someone responsible for that? When a judge overturns the patent, the granter should suffer the consequences somehow.

Re:Granting frivolous patents should be punishable

[Rob T Firefly]

Firing whoever's in charge of it? Again, nobody would want to work there if they had to accept that liability. Yeah, it'd really suck if those put in positions of power whose daily actions affect the entire future of innovation of an entire country were to be actually held accountable for the fallout from their bad decisions.

Re:Granting frivolous patents should be punishable

[Thanshin]

If you did that, nobody would want to work for the patent office. That only means it's underpaid.

Lot's of people work in positions that would instantly fire them at the first mistake, and with much subtler mistakes than those we are arguing about*. They still like those jobs because, as long as they can keep them, they pay well.

*: I do believe that in patent granting there must be really convoluted and complex cases that involve very uses of previous knowledge in subtle ways. However I don't believe those cases conform the majority.

Comment removed

[account_deleted]

Comment removed based on user account deletion

More likely

[Shivetya]

Pay us and we will let you protect yourself.

Re:Bandwagon?

[Anonymous Coward]

AV scanning SMTP isn't an invention, it's the very definition of freaking obvious. The patent is a joke.

ClamAV and on-access scanning

[omnirealm]

jimicus wrote:
> Seeing as ClamAV doesn't have a daemon mode

The stackable filesystem team (the ones who wrote Unionfs) put together a filesystem that uses ClamAV to perform on-access virus scanning in the kernel.

Barracuda makes the problem worse

[Arrogant-Bastard]

Note that Barracuda's products are notorious for generating spam. Barracuda's engineers were informed of the problem years ago, provided with a fix -- and stubbornly refused to address the situation. It's no wonder that there are now thousands of Barracuda installations on various blacklists. (Two examples: Backscatterers and Backscatterer.org) Barracuda doesn't seem to care as long as they make money.

A secondary point is that Barracuda's products are NOT open-source. Oh, they're built almost entirely on open-source (an open-source operating system, an open-source mail server, an open-source anti-spam scanner, an open-source anti-virus scanner, etc.) but they're not open-source. Essentially what they've done is take all of that open-source code, slap a web front-end on it for the point-and-drool crowd, and then sell it. They're not in this to help out the Internet or stop spam or anything else admirable: they're in this to make money, and they're perfectly willing (see first point) to make the spam problem worse if it increases their profits.

They're not alone in that -- there are others out there who are in business to profit from our collective misery. An excellent way of spotting such companies is to ask the question: "What would happen if the problem they claim to address was actually solved?" If the answer to that question is "they would go out of business", then their motivation for always treating the symptoms and never treating the underlying cause will become clear.

Re:Barracuda makes the problem worse

[svallarian]

I couldn't give a spit that the front end isn't open source. All I know is that I was able to get gateway level spam protection for under $5k for 200 users. Which would have cost well over $20k+ for a commercial solution that only works half as well. And, yes, I could have set all of that up from scratch and save a few thousand, but my time is better spent elsewhere.

Re:Barracuda makes the problem worse

[element-o.p.]

Not to mention that my six year old daughter could provide better tech support than Barracuda does :(

We use a pair of Barracudas where I work to filter incoming e-mail, and in all truth, they work really, really well. That is, until something breaks. One of our units had problems with its hard drive, so we called tech support. They dinked around with the box (on our network) for over a week without fixing it -- all the while it was spooling up mail, but not delivering it -- and then things got bad. The Tech Support genius working on the box finally figured out the drive was having problems writing to /var, so he *comments the line mounting /var from /etc/fstab* and reboots the box.

Question for all you *nix gurus out there -- can a unix-like OS reboot without /var being mounted?

Anyway, at this point we're livid. Our box has been out of commission for over a week, the Tech Support n00b has finally hosed the box beyond in-the-field repair, and now we've got to send the box to Barracuda for replacement. Unfortunately, we don't have instant replacement on our warranty service any more, so they want us to ship the box back to them, and then once they get it they will ship a replacement unit to us. Since that means something like another 5-10 days of downtime on a box that's already been down for over a week, we ask about buying the instant replacement policy on the unit, and they tell us that yes, we can do that, but we'll have to buy the policy from the date it expired, meaning we will have only another month or two left on the policy after we buy it, and that buying the instant replacement policy is something like 3/4 the cost of simply buying a new unit outright.

Re:Barracuda makes the problem worse

[qralston]

They're not in this to help out the Internet or stop spam or anything else admirable: they're in this to make money

Exactly.

While Trend Micro's patent shakedown is underhanded, Barracuda's defense tactics are just as underhanded.

Up until they issued their press release, you could search in vain for any mentioned of Clam AntiVirus or ClamAV on their web site or in their product manuals. (You could find hits on GPL, but only because they mentioned that the source for GPL-licensed software was available.)

In short, Barracuda slaps a bunch of open-source products together, resells them at a hefty mark-up, and then runs slick ads in airports and trade rags to convince PHBs how great their products are. (Ads which, surprisingly enough, have no mention of GPL software or open source in them.) Is it any wonder Trend Micro targeted them?

Barracuda isn't fighting the patent because it's the "right thing to do". They're fighting the patent because they don't want to share their nice fat margins with Trend Micro, and because their marketing droids are gambling that open-source advocates will reflexively take their side (thus casting Trend Micro as the moustache-twirling villain).

I mean, look at the current headlines (as of 2008-01-29) on their web site:

Barracuda Networks Defends Free and Open Source Software from Patent Threat by Trend Micro

Barracuda Networks asks for help finding prior art to defend ClamAV

Barracuda to fight Trend over open source patent

Barracuda defends open-source antivirus from patent attack

Trend Micro sues Barracuda, potentially raises the cost of security for all

About the only one that's missing is, Trend Micro threatens to personally visit open source developers' homes and kick their cute, helpless puppies.

Yes, we should be concerned that Trend Micro is shaking the sabre patent at Clam AntiVirus (even by proxy). But the enemy of our enemy is not necessarily our friend. Barracuda Networks has been using open source products to line their pockets for years, with nary even the slightest lip service in return. But now that someone wants a slice of their pie, Barracuda would have us believe that they've spent these past years singing kumbaya and holding hands with Richard Stallman.

There are many companies more worthy of our support than Barracuda Networks.

Re:My ISP...

[AndrewNeo]

The ISP probably didn't write their own virus-scanning software. They probably bought it, and the company they bought it from may or may not be paying royalties.

NOT AT All Too Easy To Fix

[crimperman]

Excise said offending code from the codebase,

That won't work in this case. The patent is for "A system for detecting and eliminating viruses on a computer network includes a File Transfer Protocol (FTP) proxy server, for controlling the transfer of files and a Simple Mail Transfer Protocol (SMTP) proxy server for controlling the transfer of mail messages through the system." So for Barracuda to comply they must stop scanning e-mails for viruses in their products.

This also means that it is not the use of ClamAV per-se which is being challenged but the fact that Barracuda are providing a server which scans for e-mail viruses. No wonder they are going to fight this - it's yer basic "pay up or close down" threat.

Not that I would mind too much - Barracuda's kit has caused me no end of pain in the last year and I don't even use one!

Err

[Vexorian]

I guess I'll wait for a new protocol to come and patent "Fighting virus on XX protocol" That should do it. Man, this patent is so retarded, Trend Micro should be ashamed for ever filing it...

Concepts vs. Implementations

[Anonymous Coward]

I thought that patents were supposed to protect my particular "solution" to a problem, not the entire concept of solving the problem itself.

Let's say that I invent a machine to separate cotton from the seeds. I am granted a patent on MY PARTICULAR "method and apparatus for separating cotton from seeds". That does NOT give me a monopoly on ALL machines to accomplish the same task. Someone else comes up with a completely different mechanism to accomplish the same task, now we have a competition without any hint of patent infringement.

Seems to me that the onus would be on Trend Micro to prove that Barracuda and/or ClamAV copied their precise implementation (source code) and used it in their products. Simply placing a virus scanner on the same server as your email and ftp services is in NO WAY a 'patentable' idea.

patent idea reversal

[Anonymous Coward]

Perhaps the best play is to use the bad patent system and patent an antivirus system with included smtp and ftp abilties... because in the eyes of the patent office, this is completely different from an smtp and ftp system with antivirus abilities.

Hang on a second...

[PinkyDead]

I must be missing something here...

I have configured for a number of my clients their own SMTP servers for which I charge. These servers are generally gateways with postfix as the server. The anti-virus is ClamAV which is called by postfix.

Or to put it another way they have 'anti-virus detection on an SMTP or FTP gateway'.

Does this this mean I have violated this patent? Or should the patent be rewritten as 'Patent 5,623,600: Installing software on a computer'?

A quick google for prior art...

[martyb]

Thanks to google and its archive of usenet posts: this query on google groups of: "FTP SMTP virus proxy server group:comp.*" for the time period of 01-Jan-95 through 26-Sep-95 (the patent was filed on 26-Sep-95) returned this link .

It appeared in the comp.security.misc newsgroup and the first few paragraphs (emphasis added) suggests to me this might be prior art:

FOSE '95, WASHINGTON, March 21 /PRNewswire/ -- Norman Data Defense Systems, Inc. today introduced the Norman Firewall, a firewall providing a single, highly secured route for data traveling between networks and the Internet.

"We are proud to deliver a new level of data defense for networks that are currently vulnerable to attack from a variety of global data security threats, including hackers and viruses," said Norman Data Defense Systems, Inc. President and CEO David J. Stang, Ph.D.

Like a sentry positioned to identify visitors and then authorize or deny entry, the Norman Firewall combines an integrated front-end server, proxy server, and virus detector to defend systems and information. The Norman Firewall essentially opens incoming and outgoing data packets, and inspects, virus-checks (against more than 6,500 known viruses), and repackages the data packets, before delivery to their destination. No packets ever need to directly enter or leave internal networks.

I don't have time right now to search further, but wanted to put this out there for others to follow up on. Any takers?

P.S. As a point of comparison, consider that the Morris Worm was released onto the internet on 02-Nov-88 (more details here: A Tour of the Worm) and THAT was nearly SEVEN YEARS before this patent was filed!

Trend Micro and open source...

[nologin]

Hmm, the last time I installed a Trend Micro product was about 18 months ago. I know that back in that time, Trend was using postfix on their SMTP gateway anti-virus products implemented on Linux systems.

If Trend Micro is really trying to prevent other companies from offering cheap solutions for anti-virus/anti-spam gateways, I would take a long hard look at how they themselves got to where they did at this point in time.

Re:Bandwagon?

[cfulmer]

Symantec wouldn't be paying up unless they knew it was an un-winnable case.

Phooey. Here's a fairly common scenario:

(1) Company gets questionable patent
(2) Company offers a very inexpensive license to a big-name suspected infringer
(3) big-name suspected infringer buys the license because it's a lot cheaper than litigating
(4) Company goes around to others and says "big-name suspected infringer has a license, so it must be legit. Pay up." Only, this time, Company asks for a lot more money.

The US Patent Office is still poorly equipped to handle software patents, so it lets a lot more through than it should, turning a lot of the job of proving their validity to the courts. But, patent lawsuits are expensive, so most patents are never tested.

Is it just me, or..

[Seth Kriticos]

Is anyone else starting to get tired of this?

The patent system was invented quite some decades ago to protect inventors from other people, who just stole their inventions and made profit of it.

Back in that days, inventions were actually realy made and development was so slow, that 20 years were a reasonable time for the protection of the invention.

Then time moved on, the number of real inventions did not realy rase, but most stuff was just a mere reorganization of existing stuff, but the number of patents went up.

Nowdays, if someone realy invents something, that would make the world a better place, some big corporation ensures, that it never surfaces bigger public, because that would harm their bussiness. (Like some drafts of more effective engines, and the like).

Now we start putting patents on Software, which is like a book, and should get copyright, but why on earth sould it be patented? And where does that benefit the creation of new inventions? It clearly does the opposit in most perspectives.

So maybe I'm missing the point, but I don't realy see, why this kind of system can keep existence, even thow it slowly brings economy to ruin and helps humanity to get a step closer to selfdestruction. Hmm.. Maybe I'm a bit exagerating, please prove me wrong.