Postini antispam patent could cause headaches

Postini antispam patent could cause headaches

A patent granted to managed email security company Postini in the US could pose problems for the company's competitors and others in the managed email services market, according to experts.

If enforced, the patent, which covers an email "pre-processing service" could grant Postini legal ownership of a wide range of antispam and email security methods. However, some industry experts doubt that the patent, filed in September 2000, will stand up to legal scrutiny.

Patent #6,650,890 was awarded to Postini by the US Patent and Trademark Office (USPTO) in November 2003. The patent cites three inventors, including Postini co-founder and vice-president. Scott Petry. and former employee Gordon Irlam. The patent describes a variety of methods for providing messaging services in an email network, according to the USPTO website.

Among other things, the patent covers the use of an "intermediate pre-processing service [in] the electronic message delivery path" that requires changing the "Domain Name Server entry ... of the destination email server to contain an Internet Protocol [IP] address of the intermediate pre-processing service."

Different methods of message "pre-processing" are addressed in the patent, including forwarding based on instructions stored in user profiles, forwarding parts of the email message content, forwarding email to wireless devices, junk email filtering, and virus detection, according to the patent.

Companies such as Postini, MessageLabs, MX Logic and Frontbridge Technologies intercept inbound email on behalf of their customers, then filter out spam, viruses and other unsuitable messages before sending the remaining email messages on to the customer email server and the message's intended recipient.

The new US patent declared such configurations Postini's intellectual property, said Steve Frank, a partner in the patent and intellectual property group of the law firm Testa Hurwitz & Thibeault .

"To the extent that (Postini's) competition is running pre-processing centres that intercept email and does something to it, this patent has fairly broad coverage," Frank said.

Postini executives are studying the patent and considering ways to maximise its value to the company. In the meantime, customers and potential customers should have more confidence that the company's technology was built on a solid legal footing, president and chief executive officer of Postini, Shinya Akamine, said.

However, legal experts said that Postini's patent had telltale signs of weakness and might not stand up to legal challenges, should competitors decide to fight the patent award.

Postini's patent only cites other patents in the crucial "References" section that is used to establish the originality of the patented technology compared with prior inventions, also known as "prior art."

The lack of non-patent sources of information often indicated loose background research by the patent owners prior to filing, said Frank and Greg Aharonian, publisher of the Internet Patent News Service and a critic of USPTO work on software patents.

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

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

"All the applicants know examiners don't have the resources to search down this stuff," he said. "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,.

Competitors, including MessageLabs and United Messaging, now Bluestar Solutions, 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 email statement attributed to MessageLabs Americas presidentp Jos White, the company said that it has a policy of respecting the valid patent rights of others. However, White also said that MessageLabs "pioneered the managed services model for email security, launching the first Internet-level email scanning service in 1998 [as part of Star Internet, now our sister company]."

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

"Litigation is an effective harassment tool," he said. "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 depended on how hard Postini tried 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," Levine said.

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