Postini antispam patent could cause headaches

Frequently, the best prior literature from which patentability is questioned is from nonpatent documents that can be found online or at a university library, such as proceedings from the Institute of Electrical and Electronics Engineers Inc. (IEEE) or magazine articles, Frank said.

The lack of solid research behind the Postini patent is just an example of "major abuse" of the patent system by applicants and attorneys, who hope to slip patents by the USPTO, Aharonian said.

"All the applicants know examiners don't have the resources to search down this stuff. At most they can search prior patents because it's all online at the (USPTO). But their physical library of journals and books ... is borderline nonexistent," he said.

Competitors, including MessageLabs and United Messaging, now Bluestar Solutions Inc., should have an easy time demonstrating that they were selling a service similar to Postini's before the company filed for its patent, said John Levine of the Internet Research Task Force's Anti-Spam Research Group.

"If MessageLabs wanted to bust this patent, they almost certainly could," he said.

In an e-mail statement attributed to MessageLabs Americas President Jos White, the company said that it has a policy of respecting the valid patent rights of others. However, White also noted that MessageLabs "pioneered the managed services model for email security, launching the first Internet-level e-mail scanning service in 1998 (as part of Star Internet, now our sister company)."

Regardless of whether the patent is ultimately upheld, it can be an effective tool against competition, Aharonian said.

"Litigation is an effective harassment tool. Once a patent is issued, it's assumed to be valid, so (Postini) can be as obnoxious as they want about enforcing the patent and not be worried about getting sanctioned (by the courts)," he said.

The effect of the patent on the growing antispam community depends on how hard Postini tries to enforce it, Levine said.

Patent disputes are often very technical and take a long time to be heard and to be resolved, which can give companies like Postini breathing room. Also, weak patents can be upheld, he said.

"It's like rolling a gigantic pair of dice," he said.