Trend Micro Draws Boycott Over AV Patent Case

Linux.com is reporting that in addition to the bad press, Trend Micro's patent case against Barracuda Networks' use of ClamAV has drawn an apparent boycott of Trend Micro. "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." Linux.com and Slashdot are both owned by SourceForge Inc.

Look no further than SCO

[Marcion]

If you want to see how the open source world responds to threats, look no further than SCO. Many Linux fans are also Unix admins at work, and many of them got their employers to switch from SCO to *anything other Unix-like OS* in response to the threats. Now SCO is in bankruptcy and not likely to come out.

Re:Look no further than SCO

[houstonbofh]

While I would not go as far as to say that was the cause only of the SCO downfall... A number of FOSS geeks are influential in a lot of purchasing decisions for both business and home users. And there are a LOT of good AV programs.

Re:Boycott all commercial antivirus programs?

[houstonbofh]

Commercial is not always bad. Some users do not have a clue, so they need to rent one from support. However, the pre-installed extortion-ware than does not cleanly remove is reason enough to boycott McAntic for life.

So will there ever be a legitimate patent to you?

[Jailbrekr]

Trend Micro is not a patent troll, they are a legitimate company who patented a process that they developed. Now they are exercising their rights as a patent holder. So why the hate? This is what the patent system is designed to do.

I would boycott Trend Micro, except...

[Linux_ho]

I already have a firm policy of not buying from them because their products are crap and their technical support can be spectacularly unhelpful. They end-of-lifed a product that barely worked (the original Viruswall for Linux) and forced us to migrate by discontinuing virus signature updates. The product they replaced it with (VirusWall SMB for Linux) crashed on a daily-to-hourly basis, and over a period of weeks my repeated cries for help were basically ignored. We replaced their product with a Linux box running ClamAV and Postfix, which has run flawlessly ever since. No wonder they've turned to litigation.

Re:So will there ever be a legitimate patent to yo

[TheLinuxSRC]

Trend Micro is not a patent troll, they are a legitimate company who patented a process that they developed. Now they are exercising their rights as a patent holder. So why the hate? This is what the patent system is designed to do.

As I understand it, the patent involves filtering viruses before they make it to end user computers; eg. at the router/mail relay etc. The reason for the hate is that this is an obvious way to prevent viruses from entering your network. The hate is not so much aimed at Trend Micro as it is at the broken patent. However, the fact that Trend Micro is suing their competition using a broken patent as ammo is not going to earn Trend Micro any kudos.

Re:Patents are anti-competitive

[automandc]

The parent post is remarkably uninformed and reflects a poor understanding of the patent system and how it is used.

First of all, patents have always been the domain of big business. One of the reasons many of the "founding fathers" were so suspicious of the patent system was that patents granted by the King were government granted monopolies given to particular large corporations, usually as a political favor. Whoever had the "patent" on the tea kettle became the only tea kettle maker in England until someone convinced the King otherwise. Thus, the U.S. Constitution was written to specifically limited to allow patents only "for a limited time" (Art. I, section 8, cl. 8). This was the answer to the uneasy tension between giving an incentive to create while not granting perpetual monopolies. Thomas Jefferson, himself an inventor, recognized that patents are a necessary incentive to invent, which enriches society.

The antithesis of patents is trade secrets. If I have a trade secret (e.g., the mythical recipe of Coca-Cola), I don't have to tell any one else how to make it, and as long as I am really good at keeping the secret the world will never find out -- hence, there will always be only one "Coke" even though there might be other "colas".

By having a patent system, the entire world gets to learn about your new invention, possibly improve on or build on your idea, and after a period of time they get to copy it themselves (or, they can license it and avoid the wait).

Moreover, today's technology is such that, in many fields, it is simply unrealistic to think that real progress could be made by individuals working alone. For example, no person puttering in their basement is going to come up with a new process for fabbing microchips, or a new drug that is proven safe in humans -- those things require lots and lots of resources that only corporations or other institutions (e.g., Universities) can afford. Even Thomas Edison, the prototypical "inventor" had an army of technicians and assistants working for him by the end of his life.

Patents are not "evil," nor are corporations that participate in the patent system. There are, however, a lot of bad patents out there right now (for a variety of reasons beyond the scope of this post). However, a company that has a "bad" patent cannot be faulted for trying to enforce it -- they are simply trying to protect their business interests (yes, business is cut-throat; get over it). Theoretically, the courts are supposed to take care of the bad patents. The fact that the courts may be failing is not the fault of the businesses that are seeking to protect their own interests.

Re:Patents are anti-competitive

[Bruce Perens]

What you wrote was the intent of the patent system, but not the reality. Engineers in tech companies are routinely told not to look at patents, because of the treble-damages problem or what I call the penalty for looking, damages three times as high for "knowing" infringement rather than unknowing. This makes the disclosure function of a patent inoperable. In addition, the claims of patents are written to capture as many possible applications as possible, even ones that had not been invented by the filer of the patent. This requires vagueness in the claims and further reduces the probability that they actually disclose anything of use. Indeed, the language generally used in patent claims is not particularly readable by engineers in the applicable discipline. One need only attempt to read a few patents for this to be clear. Thus, trade secret is not the antithesis of patent. A release of Open Source software is much closer to the antithesis of trade secret because it is a working and usually comprehensible implementation. Patents generally go hand-in-hand with closed-source software, and the source of that software is legally treated as a trade secret. Finally, in software, the duration of patents is so long compared to the duration of a generation of technology that there is no useful art remaining by the time the patent goes into the public domain.

Surely you must be aware of these issues.

Bruce

Re:Highly Illegal

[Bruce Perens]

One could surmise that Slashdot is participating in the boycott of a US corporation. This is a HIGHLY illegal act on the part of any US corporation,

Gee, what planet are you from? Obviously one without a constitution.

Bruce

Boycott all commercial AV software? No !

[golodh]

I don't think this would be at all reasonable. Boycotting Trend Micro software is something I'd agree with though.

However, much as I like Open Source Software in general, I consider it perfectly OK if people decide to use commercial, closed-source, anti-virus software. I would urge them to (re)consider using such software in favour of OSS, but if they wish, for whatever reason, to spend their money on closed-source anti-virus software, then best of luck to them (and the producers of closed-source AV software).

What galls me in this case is the unfair way in which Trend Micro uses a blindingly obvious patent they somehow got their hands on to squeeze an OSS competitor out of the market. The patent, basically the idea of having a virus scanner on gateway servers to a network that scans incoming files as they are being transmitted, is of course trivial.

Why?

The idea that in order to prevent infected files from entering a network, you can do the checks "at the border", i.e. in the gateway server, is about as obvious as the idea of keeping a place dry by having a roof and 4 walls. Since the incoming files aren't stored on the gateway server but immediately forwarded, the only thing you can do is to stream the incoming file through an AV scanner. Patenting an "invention" like that is of course only possible in the US.

Unfortunately the law says that even such patents have force, so an unscrupulous commercial AV vendor (Trend Micro) can use it to sue people for doing this.

That's why I'd support a boycott of Trend Micro. Not because they're closed-source vendors, but because they behave like thugs.

Re:So will there ever be a legitimate patent to yo

[nguy]

Trend Micro is not a patent troll, they are a legitimate company who patented a process that they developed.

They didn't "patent a process", they have patented an entire category of applications, and one that they did not invent.

Re:Patents are anti-competitive

[Bruce Perens]

Go ahead, flame away, I've got tough skin. :)

This is a rhetorical strategy: Label your opponents as flamers and some folks will see them that way. Spare us, please.

The parent post to which I was responding suggested that all patents are ipso facto bad

He's commenting about a software patent. That's what the article is about. There are compelling arguments that software patents are a mistake.

However, I get a little weary of the "engineers are pure as driven snow" attitude.

The pure-as-snow ones don't become expert witnesses and are not generally asked to testify for the prosecution in an infringement case. However, given the last time the USPTO prosecuted a case of perjury on the application (1974, and the enforcement department no longer exists), it doesn't seem that there is any incentive for purity.

Patent and Trade secrets both seek to balance public good against personal gain

Yes, but we're back to the intent again. In the case of software patents, rather than a balance all of the incentives seem to be for the bad actor.

(2) Any company that thinks it can avoid a willful patent infringement claim by telling their engineers not to look at patents needs to question whether their corporate counsel is serving them or the other way around.

I'm not sure the counsel think that's all that needs to be done to protect the company, but it is standard direction for engineers in tech companies. I've had it at HP (internal counsel) Pixar (Wilson Sonsini, Larry Sonsini was our direct counsel) and it is at the standard at many companies.

I don't agree that patents are always longer than the current "generation of technology." Look at GIF, MP3, recalc etc.

GIF is a legacy technology and the specific patent, the Unisys - Terry Welch algorithm to preload tables in the Lempel-Ziv compressor, was arguably trivial and was far from the state of the art when it expired. MP3 seems to be encumbered by patents still in force but not from its inventors. If I understand what recalc you are taking about, I'd make a case it is trivial and pre-existed the patent.

Re:Patents are anti-competitive

[Bruce Perens]

The first paragraph of the parent was not specific to software patents.

You are asking for too much precision from a correspondent who is not used to arguing in a courtroom. The discussion here regarding patents is usually specific to software, and this discussion is specific to software.

Those same experts, having never seen the patent before, can talk themselves into the position put forward by the attorneys presenting the case.

I have a telephone lecture entitled you don't want me to write my report, and you don't want to ask why that I use for customers whose case my finding does not support. They appreciate hearing it that way, thank me, and pay my bill.

We are not talking about representations made to the patent office (although those can always be dealt with by invalidating the patent for fraud, which happens not-too-infrequently).

Yes, but where is the peril for the bad actor? They know they can lie on their application and never be charged.

Once again, the system isn't really designed to catch so-called "bad" applications at the PTO -- it is designed to have bad patents thrown out in court.

This is a full-employment act for patent attorneys, and unfortunately results in an abridgement of justice for the defendant. The last time I checked, the American Intellectual Property Law Association's Annual Economic Report was quoting USD$3 Million to USD$7 Million for defense in a single software patent case. For individuals and small or medium-sized enterprises, which make up the vast majority of the tech economy, there could only be a Phyrric victory because they'd exhaust their funds. Their only real choice is to settle under whatever terms the plaintiff offers.

Perjury before the court is not the domain of the patent office -- it is the domain of the court (and, if rising to a criminal level, the U.S. Attorney).

The patent application includes an oath explicitly under 18 USC 1001, the same law covering sworn testimony in court, which applies equally to matters in all three bodies of government. There are standing patents in which the claimed inventor can not have believed the matter was actually an invention. There are also patents in which documentation exists that the claimed inventor had knowledge of prior art not listed on the application. USPTO has standing to bring a case before the U.S. Attorney when such offenses happen, and yet does not. Nor have I heard of a court that after hearing an infringement case refers a case of perjury on the application for prosecution.

How can someone perjure themselves when giving an opinion?

There is no shortage of perjury cases against experts.

A strong argument could be made that the flaws in the patent system do more harm in the market for prescription drugs, where people literally die every day due to the artificial monopolies granted on life saving medicines they cannot afford.

Yes, the prescription drug system is broken, but with the current system only a patent monopoly provides the monetary incentive that can support getting over the FDA hurdle. The process of drug approval is front-loaded to the tune of about a Billion dollars. You need that much money before you start making a profit. Contrast it to software, in which the front-loading on the cost of development is the cost of a laptop and a developer's time - we're still seeing significant products coming out of individual developers and of course Open Source teams.

Now, consider the economics of production and competition of those two very different fields. Most businesses fail. Even when a business does not fail, most have different ideas. We're going to get the maximal delivery of innovation in software to the citizen if the most possible businesses are able to implement each algorithm. In contrast, we're not goi

Re:Patents are anti-competitive

[automandc]

You are asking for too much precision from a correspondent who is not used to arguing in a courtroom. The discussion here regarding patents is usually specific to software, and this discussion is specific to software.

I don't think it has anything to do with arguing in a courtroom -- precision matters in any context; viz., the complaints about how patents are currently written. While I certainly appreciate that software is the main topic, I do think the original poster meant to comment on the entire patent system -- I just don't see how else to read his post (particularly his reference to "inventor" instead of "developer").

I have a telephone lecture entitled you don't want me to write my report, and you don't want to ask why that I use for customers whose case my finding does not support. They appreciate hearing it that way, thank me, and pay my bill.

Sure, I have heard similar lectures (although I usually try to get a sense of whether that will be the case before I pay any bills). But I don't think it is necessarily wrong for someone with no prior interests to approach a problem with a specific goal in mind. That's the nature of the advocacy system: I have my experts and you have yours. It doesn't make someone dishonest simply because they honestly convince themselves of a particular position on a question to which there is no "right" answer. However, I agree that some paid experts take that too far, and compromise their academic credentials for money, which is wrong. That's why I try to stay away from "professional experts" on engineering and science questions (economics is a different story, but don't get me started about them) and only hire people who are truly involved in the specific field, and who don't have a tremendous amount of previous experience as an expert.

Yes, but where is the peril for the bad actor? They know they can lie on their application and never be charged.

The prosecuting attorney can face ethical charges, and also disbarment from the USPTO and/or generally (essentially a professional death knell), but I agree that there is probably not that much enforcement. This is just another result of the overburdened patent application system -- too many applications, not enough examiners to really discern who is lying and who is just confused (and hard to prove anyway).

This is a full-employment act for patent attorneys, and unfortunately results in an abridgement of justice for the defendant...

You won't hear much argument from me. As I said, the system is broken. But no one has yet come up with a workable alternative that can garner enough political support to become reality. I think everyone (big corporations, small time inventors, start-ups, lawyers, PTO examiners, etc.) believe the system is broken, it is just a question of what the solution is. The number of companies actively benefitting all the time from the bad system (e.g., trolls) is not very large, and I doubt that those companies have a lot of political clout.

There is no shortage of perjury cases against experts.

Really? I don't doubt what you say, I am just interested in the source of your information. That is something I would like to hear more about.

Yes, the prescription drug system is broken . . . [c]ontrast it to software, in which the front-loading on the cost of development is the cost of a laptop and a developer's time . . .

Well, for large OSS projects, like Linux, the collective value of the developer time is not trivial -- I would make a WAG that the value of developer time put into linux or mozilla well exceeds some of the drugs that come to market. At the same time, new understanding of proteins and genetics, plus cheap access to raw computing power is making it more and more feasible for small companies (and even individuals) to patent new drugs (as well as methods of explo