Server Based Antivirus Patent Means No More US Sales For One Antivirus Firm

from the oh-come-on dept

It seems the stories about bad software patents are accelerating. While this one isn’t about a new patent, it does show the impact of one such patent. Apparently, anti-virus firm Trend Micro has a patent on the idea of server based anti-virus protection. Why is this patentable? There’s nothing particular special about blocking viruses from the server side — and, not surprisingly, other companies came up with similar solutions. However, the courts have now banned one such company, Fortinet, from offering providing new customers with updates to their anti-virus offering. Combine this with another patent on automated anti-virus downloads to client-side applications and it’s amazing that we can do any kind of anti-virus activity at all without having to pay out large sums to patent holders.

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Comments on “Server Based Antivirus Patent Means No More US Sales For One Antivirus Firm”

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Robert says:


About your comment: “Apparently, anti-virus firm Trend Micro has a patent on the idea of server based anti-virus protection. Why is this patentable? There’s nothing particular special about blocking viruses from the server side — and, not surprisingly, other companies came up with similar solutions.”

To obtain a patent, the subject invention does not have to be “special” as you put it. It merely has to be new, nonobvious and useful. Patents drive innovation. They protect the companies (and individuals) who spend the money and time to create (and develop) a new idea. Mike, if you have a problem with how patents are granted…file for a third-party reexamination for the above-referenced patent…or write your congressman. Do something concrete. Don’t just whine to everyone. The problem with patent-bashers is that they are often terribly uninformed about the subject which they are preaching about.

Mike (profile) says:

Re: patents

Do you read what we usually write here? Is it really that “terribly uninformed”?

I think we know quite a bit about the patent process — enough to know that your blanket statement “patents drive innovation” is complete hogwash. Not just hogwash, but provably false. As we’ve pointed out before (see? we do our research!), if you look at places like the Netherlands and Switzerland during periods when they got rid of patents altogether, they showed great innovation advances.

Yes, the idea is for patents to drive innovation, but the reality is different. Patents support invention, not innovation. In the past, the two may have been close enough that patents were the best system available… but it’s abused in way too many cases today. A patent grants someone a complete monopoly for many years. It’s not hard to understand that monopolies tend to *hold back* not encourage innovation — so any decision to grant a government backed monopoly should be extremely rare and only in the most special of circumstances. Is that what’s happening today? It sure doesn’t seem like it.

That’s what we keep pointing out.

And, to be honest, right now the most effective way to get change to occur is to get more people aware of the ways the patent system is being *abused* to harm innovation, rather than encourage it. So, while you call it “whining” we call it informing.

So, which part is “terribly uninformed?” Why don’t you let us know. If you can convince us, then aren’t you doing everyone a favor, since you seem to think we’re causing problems?

Robert says:

Re: Re: patents

You are “terrible uninformed” about the patent system itself.

The patent system is not being abused to harm innovention. In fact, it has provided the public with 6,900,000 (roughly) different disclosures of inventions since all the way back to the time that Thomas Jefferson and Ben Franklin created the U.S. system in the first place. Thomas Jefferson was our very first “Patent Examiner” so to speak. As Secretary of State he reviewed and determined whether to grant patents all by himself (for awhile). Some of the things he reviewed and granted (in the late 1700’s) were 1) a new and cheap way to make gunpowder and 2) a more efficient plow. Both of which were quite important to the government for a young and growing country.

The patent system does not grant monopolies. It grants a short term (20 years from filing) exclusive right to make, use or sell your invention. At the end of that period…your patent disclosure (or write-up) goes into the public domain and anyone can practice it. Even during those 20 years of patent term, the patent disclosure is a published document searchable at that provides the public with new and novel ideas that can become fodder for additional inventions.

I can tell you from experience that without patents, absolutely NO drug company would make those new drugs for various childhood diseases that we demand for our children when we visit the doctor. Polio vaccines? Nope. Mumps or measles vaccines? Nope. Augmentin or amoxicillin? Nope. Lipitor for your aging dad’s high cholesterol? Nope. None of these would exist. Generic companies sure as heck couldn’t afford to make them.

With regards to software patents:

Benefit #1: Boost to small business: Software patents can be the bedrock upon which small companies are founded. Starting a company is hard. Small companies have difficulties getting noticed by customers, but that’s often a function of money, and money is hard to come by unless you have something with which to convince investors that your market won’t be immediately entered by hundreds of new entrants. They want to know that those millions they give you aren’t going into a very deep well.

Patents are a great way to do that, as patents give you a time-limited monopoly on an idea. Herman Hollerith acquired an early “business process” patent relating to the encoding of data as a series of punched holes which served as the foundation for his new company, “Tabulating Machine Company” (1896) that was the predecessor to IBM. Similarly, RSA Security got its start on now-expired patents on the algorithms used in public key cryptography. (You couldn’t use SSL without it.)

These companies acquired the traction they needed to build their business from patents. That matters, at least if you think corporations matter.

Benefit #2: R&D: Spending large amounts of money on a new technology can be risky if that technology is expensive to develop but easy to copy. That’s the argument used in the medical drug industry. Why spend large amounts of money making a drug if the design can be determined in five minutes using spectrum analysis and copied by every mom-and-pop pill manufacturer in the world by the end of the week?

Patents create a safe zone within which to make such investments, thus boosting R&D laws in much the same way that corporate bankruptcy laws create a safe zone for entrepreneurship.

Benefit #3: Knowledge Dissemination. RSA Security had the incentive to popularize the use of public key encryption algorithms because they were the ones who generated all the revenue as a result of that use. Patents also have high disclosure requirements, meaning that every aspect of the innovation must be detailed so that others can use it. Though I question how strong an advantage this is in practice, it is useful to consider alongside the other two benefits.

These are all benefits that make sense if you believe corporations are important to the software development process.

Mike (profile) says:

Re: Re: Re: patents

Ah, sure, trot out the patent myths. First off, it was Thomas Jefferson who pointed out that patents should only be given out in the rarest of circumstances, *because* it granted a monopoly on an idea, and that was a bad thing. What’s the difference between “exclusive rights” and a monopoly? Nothing.

Also, I’ve heard the story about how drugs would never be made without patents, but there’s really no proof of that other than the say so of the companies. It’s tough to prove as long as they can get patents — but if there’s a market for something, you’d be amazed at how creative companies can get. However, without any way of proving it one way or the other your claim is basically pointless. We’ll call that one a wash.

I like how you tell me that “starting a small company is hard.” Indeed. I’ve done it myself a few times now. And, I’ve done it without patents. I do it by focusing on getting the product to market and proving it with real customers generating real revenue. Competitive advantage isn’t just about patents, as you imply, it’s about having the most innovative offering that *customers* want. Patents distort that, by giving a *FALSE* barrier to entry into your market. The only real competitive advantage is being able to make sure that you serve your customers the best. That has nothing to do with patents.

In fact, it’s pretty clear (as the above article shows) that patents are mis-used repeatedly to HARM, not help, small companies by taking obvious ideas and making them too expsneive.

As for point #2, the amount of R&D and innovation that takes place without patents, but with the focus on getting a product to market suggests, again, that this isn’t a universal truth. The situations in Switzerland and the Netherlands goes further to prove that. The amount of R&D and innovation when they got rid of their patent systems in fact suggests this point is absolutely false.

On benefit 3, you are correct. That is a benefit of patents — but many of the “ideas” being patented these days are hardly the type of idea that anyone needs a patent to figure out — especially in the software space. The software patents are usually general ideas that have nothing to do with any actual process.

We’re not terribly uninformed about the patent system. We’ve just seen it abused way too many times. Why is it that the folks like you seem to assume that the patent system is perfect in the face of so many abuses?

Anonymous of Course says:

Re: Re: Re:2 patents

Most patents I’ve been personally involved with were usefull for inducing investors to part with venture capital and not much more than that.
To state that the patent system is not being abused is remarkably ignorant (i.e. see the patent on swinging a swing, yes a child’s swing.)
I plan on filing a patent for inspiration by periodic movement of the diaphram and suing eveyone on the planet. The requirements for patent examiners and exam for associated legal types is heavy on law with no test for technical competence. Is it any wonder we see patents such patents issued? The system has to change. Perhaps some sort of peer review board to assist on the technical aspects of a patent would be helpful?

Ivan Sick says:

Re: Re: Re:2 patents

“You are “terrible uninformed” about the patent system itself.

The patent system is not being abused to harm innovention.”
I love this. Thanks. Please tell me what is the innovention?

If you think this particular patent is for nonobvious technology, look at it this way:
You can install a virus scanner on every client in the network and make sure each individual machine has its definitions up to date, etc., or you can use a virus scanner on just the server, through which the internet connection for every client is routed. All downloads must pass through the server before they can make it to the client, as does everything else that comes from the internet. Why would you ever do anything else? As has been said time and again, it is difficult to prove non-obviousness after the fact, but this one is a no-brainer. Find somebody who has no technical background but who is aware of computers and their capabilities in the modern world. Explain to them the difference between a client and a server, and that it is common for clients’ data flow to and from the internet to pass through the server and be examined before it can reach its destination. Ask them what they think is the best way to prevent harmful software coming from the internet to the client machines.
I think that by the second sentence of your first post on this article, (first paragraph that was not 93.33% quote) you basically stated you were about to waste a lot of time arguing about patent law and implementation.

Craig says:

I think that there is clearly more going on here than anybody seems even willing to consider. It is not like you can get a patent on a loose concept like ‘server side antivirus‘ – patents are notoriously difficult to attain. It makes sense to believe that there was some very specific technology that was being infringed upon here, or else it would never have held up in court!

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