Just as Veeam has released its latest edition of Backup & Replication, v9.5, it has also finally emerged from the shadow of a patent case completely vindicated. The case could have been very painful for Veeam had it gone the other way.
A little history is needed here before we move on. Back in 2012, Symantec issued proceedings against Veeam for infringing on several Symantec patents, including:
- Patent 7,093,086, which refers to a virtual machine backup going to a different storage device than the one used by the VM.
- Patent 6,931,558, which refers to restoring a complete virtual or physical client machine on a network—including OS, file configuration, and data—in a single step.
- Patent 7,191,299, which deals with periodic replication via multiple point-in-time snapshots in virtual and physical environments.
- Patent 7,254,682, which deals with classifying files as desired or undesired and only including desired files in a backup snapshot.
- Patent 7,024,527: Data Restore Mechanism, which refers to applications having to wait to access a file that is being restored.
- Patent 7,480,822: Recovery and Operation of Captured Running States from Multiple Computing Systems on a Single Computing System, which refers to the recovery of machines to dissimilar hardware.
- Patent 7,831,861: Techniques for Efficient Restoration of Granular Application Data, which refers to partial restoration of application data.
- Patent 8,117,168: Methods and systems for creating and managing backups using virtual disks.
The thing that must be noted here is that all these patents potentially struck directly at the heart of Veeam’s core Backup & Replication product. What Symantec was basically saying was that the whole of Veeam’s core product was a ripoff of Symantec (read Veritas) technology; remember, this case was filed prior to Symantec’s sale of Veritas. The case first went to court in 2013 for a Markman hearing.
Definition: MARKMAN HEARING
This refers to the landmark patent case Markman v. Westview Instruments, Inc., 517 US 370, held in the US Supreme Court, which determined that terms contained in claims are “usually given their ordinary and customary meaning.”
During the Markman hearing for Veeam and Symantec, the companies’ lawyers asked to courts to rule on certain terms in each of the patents for clarification and issue a Claim Construction Order. This is what would be referred to when the actual hearing occurred.
Veeam had originally claimed victory in February of 2016 when it stated that Symantec had walked away from the claims. However, until the case actually appeared in the appellate court in August 2016, it wasn’t finalized.
What is interesting about this patent case is that basic construct of the judgement is that the court and the patent office have found that seven of Symantec/Veritas’s patents were basically unpatentable due to prior art, these being:
- 7,831,861
- 7,024,527
- 8,117,168
- 7,480,822
- 7,093,086
- 6,931,558
- 7,191,299
The final patent was dismissed with prejudice. The significant word in that sentence is “prejudice.”
Definition: PRIOR ART
The attempted patent was known or used by others in the US, or was patented or described in a printed publication in the US or a foreign country. Or was patented or described in a printed publication in the US or a foreign country or in public use or on sale in the US more than one year prior to the date of the application for patent in the United States. Or the patent was lodged for patent in a foreign patent office by the inventor more than twelve months previously.
Definition: PREJUDICE
There are two standard definitions: one civil and one criminal. As this is a civil case, only the civil definition will be given. In civil proceeding, when a court dismisses a case “with prejudice,” it means that the court intends for that dismissal to be final in all courts, and that the doctrine of res judicata (literally “a matter judged”) should bar that claim from being reasserted in another court. A dismissal “without prejudice” means the plaintiff is free to refile the claim in a different court.
What This Means for the Two Parties
For Symantec/Veritas, this means they are barred from submitting a final appeal in the US Supreme Court on this matter, and the case has effectively struck off seven of their patents as unpatentable.
The result for Veeam is much more significant. Taking aside the bullish nature of its press release on the matter, this has completely cleared the air surrounding its technology. The court has entirely vindicated it from any wrongdoing, as evidenced by the “with prejudice” judgment.
What We Think
Patents are both a boon and a bane in the IT industry. They are a valid protective measure for innovators to prevent competitors from blatantly copying their technology and attempting to pass it off as their own. However, as is shown in this case, the court is starting to look more deeply at the real intent of plaintiffs bringing infringement cases to court. This attempt by Symantec was not a patent protection case per se, but more an attempt to hamstring the innovation of a young upstart that was successfully disrupting its data backup business. Instead of innovating itself to improve its products and retain its market share, Symantec attempted to incapacitate Veeam in the courts by forcing a patent infringement case. If Symantec had been successful, Veeam would have had to pay significant damages to it, and then it would have needed to license its own innovations from Symantec or completely reengineer its products to remove the infringing processes.
Patent cases are high risk for both parties. This time, the hammer fell on the side of good sense.