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USPTO Orders Reexam of Trend Micro's AntiVirus Patent Based on Prior Art
Thursday, September 23 2010 @ 05:10 PM EDT

Once again, your prior art searching on Groklaw proved useful.

The USPTO on September 16 issued an order granting Fortinet's petition to reexamine the validity of the Trend Micro patent on antivirus functionality, the 5,623,600 patent, on the grounds that a "substantial new question of patentability" exists based on prior art now being considered. Fortinet publicly acknowledges the help of the open source community, specifically mentioning the prior art searching you guys did here on Groklaw in June. The ultimate outcome is yet to be determined, of course, and that's in the hands of the lawyers now, but you guys did your part. It's a great partnership, techies and lawyers, and I thank you for working hard on this, and I hope it leads to a just resolution.

A relevant snip from Fortinet:

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 [PDF] 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.

That last link about "valuable assistance" is to Groklaw's prior art work on this patent, and I knew you'd want to know.

Next? The community will definitely help locate prior art, if it exists, with regard to any patent it perceives as threatening the community's interests. And I'm really excited that it is working out, because it was my dream for Groklaw from the beginning, to have the FOSS community help lawyers get the tech right. I believed you could do it, and now that I see that you can indeed do this, frankly it's a dream come true for me, and it feels mighty fine.


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