Fortinet

The security industry is full of some of the best innovators that enterprise technology has ever seen. Security requires rapid, well-executed innovation due to the ever-changing threats from the hacker community. Without security innovation, companies and individuals sit defenseless against new threats from cyber criminals. However, there has been a looming dark threat to security innovators — Trend Micro has a long history of aggressively pursuing competitors with what has turned out to be considered an invalid patent. The good news is that a team of patent slayers is trying hard to finally shine sunlight on the invalidity of this patent.

The targets of Trend Micro’s patent aggressions are numerous … McAfee, Symantec, Fortinet and Panda Software to name a few. And in 2007, using its patent on antivirus functionality, the 5,623,600 patent, Trend Micro attacked Barracuda Networks. Barracuda, in turn, quickly called for help from the open source community. The ‘600 patent is the basis for much of Trend Micro’s marketing hype claiming that innovation is at its core. Trend Micro has claimed that its patent is valid and reads on network antivirus functionality, which would include open source antivirus software.

But Trend Micro’s arguments vanish when held up to a mirror — as industry experts know, Trend Micro did not invent network antivirus functionality. In fact, in response to Barracuda’s calls for help, the open source community responded by, among other things, identifying a good deal of invalidating prior art — antivirus functionality invented well in advance of Trend Micro’s purported invention. Thanks to the help of the open source community, patent experts at the International Trade Commission (ITC) issued a pre-trial opinion that Trend Micro’s patent was invalid. Unfortunately, this ruling was only beneficial to Barracuda, who settled the case before it could benefit the wider security community. Trend Micro, faced with patent uncertainty after the ITC decision, quickly settled with Barracuda.

Fortinet is working to finish the job that the open source community and Barracuda started, which is to drive a wooden stake through the heart of Trend Micro’s invalid patent once and for all. Yesterday, Fortinet filed with the U.S. Patent and Trademark Office (US PTO) a petition to re-examine Trend Micro’s patent. The petition identifies prior art revealing the invalidity of Trend Micro’s patent and is one of several avenues Fortinet is pursuing to finally and publically defang Trend Micro and bring the invalidity of this patent into the sunlight.

Fortinet has also recently received favorable rulings in federal and state courts in challenges to the validity of the same patent. Recently, the legal atmosphere has become much less favorable to patent aggressors like Trend Micro − case law has made clear that certain patent licensees need not pay something for nothing − they do not owe royalties for invalid patents.

Trend Micro markets itself first and foremost as an innovator. But Trend Micro’s long history of patent aggression based on an invalid patent is contrary to the innovation that Trend Micro claims is all important. With hope, Fortinet’s actions against Trend Micro in the courtroom and the US PTO will help put this vampire to rest once and for all, which will benefit the community at large.

Further reading:

First Amended Complaint for Declaratory Judgment — 2009
Order Granting Defendant’s Renewed Motion to Dismiss First Amended Complaint – 2009
Order Granting In Part And Denying In Part Defendant’s Motion to Dismiss First Amended Complaint – 2009
Complaint for Declaratory Judgment – 2010
Order Denying Trend’s Demurrer – 2010
Order Staying Action; Denying Without Prejudice Defendants’ Motion to Dismiss – 2010
Fortinet Opposition to Trend’s Second Demurrer – 2010
Petition for Re-Examination – 2010