Slashdot Mirror
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.)
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!
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)
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.
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.
They do publish source. On that page, I found a link to the complete source of their Linux distribution.
Tue, 25 Oct 1994 INFO: MS-Mail UUCP: Includes details with SMTP and plugins for scanning documents