Re: TrendMicro goes Douchebag

[Paul Vixie <vixie () isc org>]

kyle.c.quest () gmail com ("Kyle C. Quest") writes:

> The bottom line is that if any software steps on TrendMicro's patent
> it will suffer, ...

indirectly, perhaps, if an open source reduction to practice cannot be used
in some context because its use in that context has been patented.

but in direct terms, the patents that F/L/OSS authors and IPR owners have to
worry about are the algorythmic ones, which don't depend on the context in
which they are executed, and would keep the code from being used in commerce
(preventing inclusion on CDROMs for sale, and embedded devices for sale, or
in hand-built devices which are then used to sell things.)

in other words, the way i'm reading this, eva's patent is on a dedicated
security device that performs gateway antivirus, and if someone builds a
PC and installs Linux and ClamAV on it, then trend says their patent would
not apply.  now for the corner cases.

first, if barracuda's appliance was actually a Linux machine and you could
log into it like a Tivo, get a shell, run RPM, install your own software
including compilers, and treat it as a general purpose computer which just
happened to come preinstalled with ClamAV and happened to be mostly sold to
people who weren't going to use it as a general purpose Linux machine, then
is it a "dedicated gateway" for the purposes of this patent?

second, we seem to know that someone who builds a Linux PC with ClamAV by
hand hasn't infringed the patent, but what if they then sell it, or sell a
lot of them, or use one or several such homebrew devices to start a high
volume content-filtering SMTP MX front end service, or IMAP as an option?
so, at what point does the presence of the filtering in a gateway infringe?

i would not like to be the judge, or an expert witness, on this case.  when
the whole thing comes down to definitions of words like "dedicated" and
when loopholes exist like having the barracuda device fetch ClamAV on a
customer initiated button-press after the customer has paid for the
original non-infringing device, then the real issues are going to be so
abstract as to hurt my brain to even think about what they might be, much
less contemplate whatever they actually turn out to be.

as to the injury on F/L/OSS, it's the "chilling effect" that bothers me, not
the possibility that the authors or IPR owners of ClamAV could be sued for
infringement.  here, "chilling" means disincentive to produce certain kinds
of software if one knows in advance that some or many obvious use cases for
the software are patented and thus the software won't see as much light of
day as the authors might prefer.

it's not like trend has a patent on the bubble sort or some other algorythm,
or at least, if trend does have any patents like that, this isn't one of them.
-- 
Paul Vixie
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