Twilight for Trend Micro’s Patent?
As a follow-up to my earlier blog post on the subject of Trend Micro’s history of patent aggression, there are a couple recent developments worth noting:
First, on September 16, the United States Patent and Trademark Office (US PTO) issued a formal order granting Fortinet’s petition to re-examine the validity of Trend Micro’s patent on antivirus functionality, the 5,623,600 patent, stating that a “substantial new question of patentability” exists with respect to the patent based on prior art currently being considered by the US PTO.
Second, and most notably, a member of the open source community has recently filed a separate petition (control number 90/011,022) with the US PTO to re-examine the same Trend Micro patent presenting even more evidence of the patent’s invalidity. This is significant because it validates Fortinet’s position and it shows the resolve and resourcefulness of the open source community to challenge invalid patents that are a menace to the community. Indeed, the open source community at large provided valuable assistance to Fortinet in researching its challenge to Trend Micro’s aggressive patent approach. Members of the open source community also instituted a boycott of Trend Micro’s products in reaction to Trend Micro’s aggressive assertion of its patent against an earlier victim.
Trend Micro has proved to be both aggressive and clever at asserting patents while avoiding judgment day for its 600 patent, and clearly it will continue to try to use procedural tactics to avoid the approaching wooden stakes. But, if the recent developments at the US PTO are an indication, fairness and common sense may prevail after all.
Monitor these re-exams by watching the US PTO public web site. Search for control number 90/009,801 or 90/011,022.