Judge rules for Trend Micro in Fortinet patent case

Decision goes to the full U.S. International Trade Commission for final determination

WASHINGTON - A judge with the U.S. International Trade Commission (ITC) has ruled in favor of Trend Micro in the Japanese antivirus vendor's unfair import complaint against competitor Fortinet.

If the full commission adopts the judge's recommendation, Fortinet would be barred from importing its FortiGate antivirus firewall appliance products into the U.S. Trend Micro's trade complaint stems from a patent infringement lawsuit the company filed in May 2004, alleging that Fortinet's FortiGate products violate Trend Micro's U.S. patent covering server-based antivirus technology, granted in 1997.

The judge's ruling, issued Monday, recommends that the full commission force Fortinet to stop infringing Trend Micro's patent.

The Trend Micro patent explains technology that scans e-mail and Internet data transfers for viruses at gateways and servers, before the data arrives at a desktop computer.

The civil lawsuit has been on hold pending action from the ITC, said Carolyn Bostick, Trend Micro's corporate vice president and general counsel. Trend Micro, based in Tokyo, is committed to protecting its "spirit of innovation," and the judge's ruling helps the company achieve that goal, she said.

Fortinet, based in Sunnyvale, Calif., said in a statement it plans to "vigorously" defend its intellectual property after the judge's ruling. The ruling will have no impact on Fortinet partners and customers, the company said.

The company believes that it has been using its own technology to develop products, said Ken Xie, founder, president and chief executive officer of Fortinet, in the statement.

Fortinet, founded in 2000, announced the FortiGate product line in May 2002. The company offers other security-related products, including its FortiGuard Subscription Web-filtering service.

The full ITC has 45 days from Monday to consider the judge's ruling. If it fails to act, the judge's ruling goes into effect. The commission can also reject the judge's ruling and issue its own ruling by Aug. 8, Bostick said.

Trend Micro has, in recent years, sued other competitors alleging infringement of the same patent. In 1997, Trend Micro sued Symantec and Network Associates and McAfee Associates, and it later settled with both companies.