Over the past year, Symantec has filed two lawsuits asserting over a dozen patents against Zscaler’s cloud security platform, claiming in its Complaints that newcomer Zscaler “has gained momentum in the marketplace through unlawful use of the technology claimed” in Symantec’s patents. As “Symantec and Zscaler are direct competitors in the network security space,” Symantec claims Zscaler’s alleged use of Symantec’s patents is causing Symantec irreparable harm.
Symantec was founded in the early 1980s and has a long history in cybersecurity and antivirus technologies. As Symantec describes itself in its Complaint, Symantec grew organically and through strategic acquisitions throughout the 1980s, and in the early 1990s Symantec merged with Peter Norton Computing, launching Norton AntiVirus, Norton Enterprise Framework, and Norton Utilities. Over the years, Symantec has built up a patent portfolio of over 2,000 US patents.
Zscaler, on the other hand, was founded in 2008 with a focus on cloud-based security systems. “Born and built 100% in the cloud,” as stated on its website, Zscaler claims to “operate a massive, global cloud security architecture, delivering the entire gateway security stack as a service.”
In Symantec’s first lawsuit, filed in December 2016, Symantec asserted that Zscaler was infringing Symantec’s patents related to web security, data loss prevention, threat prevention, access control and antivirus. Symantec filed a second lawsuit in April 2017 based on network security technologies acquired when Symantec acquired Blue Coat Systems in June 2016. This second lawsuit asserted patents related to web security, security scanning, data loss prevention, intrusion prevention, and intrusion signature analysis. Zscaler filed motions to transfer and both cases were transferred from the District of Delaware to the Northern District of California.
Interestingly, as shown in the chart below, all of the patents Symantec has asserted against Zscaler were filed (or claim priority) before 2008, prior to the founding of Zscaler. One trend now observed in cloud-based patent litigation is that older patents are being asserted against “newer” cloud technologies. In fact, some have argued that all the hype associated with cloud computing in recent years is unreasonable as cloud computing merely offers a rebranding and expansion on technologies existing since the dot com boom. The fact that certain aspects of cloud computing build off older technology may allow established companies (such as Symantec) to assert an arsenal of patents against newer competitors (such as Zscaler) that offer competing cloud services.
As companies holding patents related to internet technology filed in the late 1990s to mid-2000s begin to assert these patents against modern-day cloud computing technologies, it will be interesting to see how these older patents fare against validity challenges. These patents were written years before the Supreme Court’s decision in Alice Corp v. CLS Bank and could easily be dismissed as claiming unpatentable subject matter. Zscaler employed this strategy and filed Motions to Dismiss claiming that several Symantec patents are ineligible for patent protection under Section 101. Those motions are still awaiting a decision.
However, if patents related to internet technologies filed in the late 1990s to mid-2000s are capable of surviving invalidity challenges, such patents may become extremely valuable tools against potentially infringing current cloud technologies. Early patents that can overcome invalidity challenges and are applicable to cloud technology will allow companies to assert those patents against new cloud competitors. Of course, this tactic has a relatively short life span – i.e., before these older patents begin to expire. For example, some of Symantec’s older patents are already nearing or past the end of their 20 year term. With so much patent litigation these days instigated at the behest of NPEs, it will be very interesting to see how this “cloud competitor” patent case plays out.