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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.)
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.
How we know is more important than what we know.
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 because I had the arrogance to get a patent approved for something which on closer inspection turned out to be covered elsewhere.
Yes, massive punitive damages would would ensure that the patent system does what it is intended to do: Stand as a massive risk and impediment for innovators attempting to glean income from their inventions while allowing established companies to wield an even bigger club to crush competition. F'n Brillant
I don't therefore I'm not.
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.
I checked the Wayback machine, http://web.archive.org/web/*/http://tenfour.se
Unfortunately the oldest saved page is from 1997, but there are some press releases and stuff and they mention a gentleman named Ken Hetzer. I looked him up on linkedin and it looks like he was the President of TenFour US from may 1995. Somebody should contact him, he probably remember some reference customer.
-S