Another Delay for Vista?

Small business owners interested in Microsoft’s new and oft-delayed operating system may have to wait even longer if Symantec has anything to say about it. The company has sued Microsoft, charging it with misappropriating Symantec’s intellectual property and breaching its contract and patent infringement, among other trespasses.

Symantec said in a filing with a district court in Seattle that it seeks an injunction to stop Microsoft from selling Vista and other software products that use its technology and seeks the removal of the IP from the offending products.

The security software giant claims Microsoft employs volume management technology in its forthcoming Windows Vista operating system, Windows Server 2003 and other Windows products that improperly uses Veritas’ code and intellectual property.

“We’re just trying to protect our intellectual property (IP) and what we’re focused on is making sure that our IP is protected and that any IP that misappropriated or misused is removed from the Microsoft products,” said Michael Schallop, director of legal affairs at Symantec.

Symantec, of Cupertino, Calif., also wants compensation for the harm Microsoft has caused to Symantec, but did not specify what compensation it was looking for.

The company did note in its filing that it would like Microsoft to pay Symantec punitive and declaratory damages, “treble” damages for willful patent infringement, a portion of its profits from selling products that used the IP in question, plus attorneys’ fees. Schallop added that it was too early in the discovery process to put a “damages number” on what Symantec is seeking.

The Volume Manager technology at the heart of the matter manages how data is stored, protecting it in case of outages or failures. Microsoft had been authorized to use this technology in a 1996 licensing agreement with Veritas, which Symantec acquired last year.

In 2004, the software giant exercised a ‘buy out’ option and purchased intellectual property rights for all relevant technologies from Veritas. Symantec said Microsoft is using its code to create products that will compete with Symantec. Moreover, Symantec said that Microsoft concealed its misappropriation by denying Symantec access to Microsoft’s source code, which Microsoft was required to provide under the agreement.

“Microsoft’s pervasive and continuing disregard of Symantec’s intellectual property and contract rights has irreparably harmed Symantec and constitutes trade secret misappropriation, breach of contract, breach of the implied covenant of good faith and fair dealing, unfair competition, unjust enrichment, copyright infringement, and patent infringement,” Symantec said in its filing.

Microsoft denied any misuse or contract breach, claiming that it is entitled to use the volume management code in Windows Vista. “We acted properly under our contract, and in fact even exercised our right to ‘buy out’ the code under the contract several years ago, in part to be better able to fix the bugs and compromises in code we licensed from Veritas,” Microsoft said in a statement.

The Redmond, Wash., company also said Veritas has long been aware that
Microsoft was revising the Volume Manager code to make it work better in
Windows. “We are confident that our actions are wholly consistent with the legal agreements between Veritas and Microsoft, and that these claims will be shown to be without merit,” Microsoft said.

Schallop said no court date has been set and that Microsoft has 30 days from yesterday to respond in a legal filing. The parties would then hold a discovery conference to set a court schedule. The attorney said the discovery process may turn up other products in which Microsoft has misused Symantec’s IP.

For Microsoft, the suit could further delay its next version of Windows, which has already been beset by several delays. The company said in March that consumer versions of the software would be delayed until 2007.

The suit also takes the increasing tension between Symantec and Microsoft up a notch. Microsoft and Symantec have co-existed peacefully for several years, partnering on ways to make their products work together. But Microsoft has been increasingly moving in on Symantec’s playing field, acquiring anti-virus, anti-spam and a host of other security vendors to build out its growing security software practice.

Adapted from

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