August 25, 2006 4:00 AM PDT

Gloves come off in Symantec, Microsoft dispute

After initial courtroom sparring in Symantec's trade secret lawsuit against Microsoft, the companies are now shaping up for the real fight.

A federal judge in Seattle on Tuesday approved an order that lets both parties in the case file documents under seal. They can now fully cooperate in gathering information pertinent to the case, since sensitive details won't become public record. An actual trial, should it come down to that, is still far away, though. In a court filing last week, both Symantec and Microsoft suggested trial dates in December of next year.

"We want to drive this forward," Michael Schallop, director of legal affairs at Symantec, said in an interview Wednesday. "We think we're right, and we will be able to prove it. The sooner we get this resolved the better, whether through trial or through a negotiated resolution."

Symantec sued Microsoft in May, accusing it of misappropriating intellectual property related to data storage technology. The case is part of a high-stakes battle in the software industry, where giant Microsoft is increasingly entering Symantec's turf of security software. It's the first time that Cupertino, Calif.-based Symantec and Redmond, Wash.-based Microsoft have been on opposite sides in a legal dispute.

The gloves have come off. Microsoft countersued in late June, alleging Symantec violated three of its patents. It also challenged the validity of the Symantec patent central to that company's case.

Case history

Symantec and Microsoft's legal sparring can be seen in a series of filings over the past few months.

May 18, 2006: Symantec sues Microsoft, charging misappropriation of intellectual property and violation of a license related to data storage technology.

June 15, 2006: Microsoft asks court to dismiss some claims under federal law because they are pre-empted by state law.

June 16, 2006: Microsoft countersues Symantec, claiming it violated three Microsoft patents.

July 31, 2006:  Microsoft asks U.S. Patent and Trademark Office to review a Symantec patent key to the case. It also asks the court to split the case into two: a contract dispute and a patent case.

Aug. 15, 2006:  Parties file a status report suggesting a trial date in Dec. 2007 and a plan for discovery. Plus, a motion for protective order is filed by both parties, looking to keep secrets confidential.

Aug. 22, 2006: Judge approves protective order, denies Microsoft's request to split the case, and sets a new hearing for Oct. 11.

Source: U.S. District Court for Western District of Washington, Symantec, Microsoft.

Both moves are common in patent cases. Less common, however, is that Microsoft has also asked the U.S. Patent and Trademark Office to review the Symantec patent.

"Symantec's claims are unfounded because Microsoft actually purchased intellectual property rights for all relevant technologies from Veritas (Software) in 2004," Steve Aeschbacher, an associate general counsel at Microsoft, said in an interview Wednesday. "We believe Symantec is infringing on our intellectual property."

Covered by standard?
Microsoft is arguing that the crucial Symantec patent is invalid because it is the same as an Institute of Electrical and Electronics Engineers standard that existed more than a year before the patent was filed, according to a copy of the request to the Patent Office dated July 31.

The U.S. patent in question, No. 6,826,661, describes "methods and systems for storage architectures." Microsoft claims that it covers the same ground as the IEEE 1244.1-2000 standard for media management system architecture.

The Patent Office has not yet responded to Microsoft's request; it may take several weeks, a representative for the software giant said.

Symantec strongly believes in the merits of its case and the validity of its patent claims, Schallop said. "Our comment on these issues will be reserved for the courtroom and any potential proceedings before the USPTO," he said.

Meanwhile, Microsoft is pushing for a special court hearing to determine the scope of the Symantec patent. This so-called "Markman" hearing could bring a swift end to the case, either in a "prompt settlement or a stipulated judgment and appeal," Microsoft said in a status report filed last week with the court.

While Microsoft hopes to schedule the Markman hearing in April, Symantec wants to hold off discussion until the court has appointed a specialist on patent issues, Schallop said. U.S. District Court Judge John Coughenor on Wednesday asked both sides to suggest an independent expert to advise the court on patent matters.

The case, filed in U.S. District Court for the Western District of Washington, involves Symantec's Volume Manager, a hard-disk management tool it acquired as part of its takeover of Veritas.

Symantec seeks unspecified damages and an injunction barring Microsoft from using the storage technology. If granted, the injunction would put a halt on Windows Vista and the Longhorn server, two major Microsoft products slated for availability in 2007.

Microsoft's counterclaim actually strengthens Symantec's case, Schallop said. In the suit, it charges that Symantec infringes on three of its patents related to automated system recovery technology. However, Symantec contends that those patents are invalid because they are based on technology it bought years ago.

"We acquired this technology from Seagate (Technology) years ago, and we actually have the earlier filed patents to this automated system recovery technology," Schallop said. "We believe that the patents they assert against us are invalid."

Headed to court
In addition to approving the protective order to seal documents, Coughenor on Tuesday dismissed a Microsoft request to split Symantec's complaint in two. The company had sought to separate the case into one on patent infringement and another on breach of contract.

Symantec and Microsoft have tried to resolve the dispute, but were unable to, they said when the patent lawsuit was filed. The companies "agreed to disagree" and go to court. Symantec alleges that Microsoft put the disputed technology into use in Windows Server 2003, Windows Vista and the upcoming Longhorn server release.

Microsoft initially licensed the technology from Veritas in 1996 and used it in Windows 2000, Symantec said. It then used the technology to develop a feature in Windows Server 2003 that competes with Veritas' Storage Foundation for Windows and filed patent requests based on Veritas' trade secrets, Symantec charges.

The company is also taking on Microsoft outside the courtroom. Its security research arm has published three reports critiquing security in Vista. Also, Symantec has complained that a feature in the 64-bit versions of Windows XP and Windows Vista stifles innovation in the security space.

No trial date has been set. Both parties are scheduled to appear in court for another status conference on Oct. 11.

CONTINUED: The Vista factor…
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12 comments

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XP Pro 64-bit
I run this, and can not find a software version that will work on 64-bit, that is not Microsoft made. Nothing works.

Thank God I switched to OS X one year ago, I love it, and would never look back. Linux also is great.
Posted by rmiecznik (224 comments )
Reply Link Flag
Avast is good for XP 64
If you are looking for anti virus software for 64 bit windows, Avast works great.
Posted by ralfthedog (1589 comments )
Link Flag
MS can crush Symantic
All they need to do is do something they have never done: release a secure OS.

HA! Like that will ever happen.
Posted by qwerty75 (1164 comments )
Reply Link Flag
sym sore losers
they're just mad cause of how patchguard in vista keeps them out of the kernel.
Posted by krolew_1 (1 comment )
Reply Link Flag
"first time that Symantec and Microsoft..legal battle"
MS-DOS 6.20 included a version of Scandisk that was so blatantly ripped off from Norton *** Symantec that a lawsuit ensued. Microsoft did a quick (imagine that!) rewrite of MS-DOS as version 6.22 to comply with the judge's finding in Norton's favor.
Gates & Ballmer just keep on with the same old stuff - crush the competition, apologize - $30 mil to Netscape, $10 mil to Brian Dougherty via Wink, others - & repeat.
Posted by gillfitz (1 comment )
Reply Link Flag
Forget about innovating on Windows.
Anyone who innovates on Windows will end up sore losers because MS own Windows and all good ideas will end up in their hands one way or another. It was just a matter ot time before Symantec got screwed.

On the contrary, anyone today (including Symantec) can innovate on the Web and have a good chance at making a viable business. In the Windows world, you are sure to be screwed by Microsoft if your idea is a success.

The only IT platform where you can innovate without being put out of business today is the Web. The Web is the biggest and richest platform out there.

We all own the Web and it flourishes because it is open. All you will see in Vista are a whole lot of Web tools that they copied from the likes of Google. So Vista is just copying the Web and Google and they expect you pay hundreds of dollars for services you can already get today for free. So Windows is already behind in innovation compared to the Web and it will be suckers that buy into it.

In the future you will access the Web from all kinds of devices. The OS won't matter that much. People will be running weblications from cellphones and other mobile wireless devices. All that matters is that you are connected and have a browser.

No need for clunky software and less viruses too, if you work online and save files online that is. You can always sync your files offline if you want. But the need to install software and the vulnerabilities in getting a virus on your computer is dying out in the online era.

Windows is now a clunky old idea that is waning. Vista is Microsofts last stab and there won't be people lining up for it either.

In light of the future Web, Symantec should be innovating in that space.

There is money to be made patching the security vulnerabilities in Windows in the meantime, but the writing is on the wall.

The Web is the place to go for new innovations and services. You can access it from anywhere at anytime.
Posted by t8 (3716 comments )
Reply Link Flag
True that...
I agree with this statement.

If Vendors can get clear access into the heart of windows, the kernel and there are hidden parts that only MS can access and/or benefit from, then what's the point in developing software for MS Windows.

I would start switching work force to deveop for OS X or Linux, it will be a force to recon with into the future.
Posted by rmiecznik (224 comments )
Link Flag
vista
thanks for the education from a granny
Posted by gream (2 comments )
Link Flag
vista
thanks for the education from a granny
Posted by gream (2 comments )
Link Flag
Buying MS Security is Like Buying Meat at Jeffrey Dahmer's Butcher Shop
Or hiring Charles Manson to guard your family from predators.

Roberto
Posted by Sumatra-Bosch (526 comments )
Reply Link Flag
 

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