E-learning patent fight leaves open source alone

Education software company Blackboard has come under fire for its seemingly all-encompassing e-learning patents, leading it to remove certain open-source course management systems from its hit list.

Blackboard said its Patent Pledge will protect from prosecution institutions and individuals (and companies affiliated with them) any course management software developed with open source or home-grown code. This is in line with Blackboard’s values of “colloboration, openness, and sharing,” said Blackboard’s chief legal officer, Matthew Small.

Proprietary programs that infringe on the copyright could constitute patent infringement, along with proprietary code that has some open-cource sprinkled into it, although established open-source companies that have partially proprietary code, such as Moodle, ATutor, Elgg, and Bodington, are exempt. One of their numbers, Sakai, aided Blackboard in drafting the pledge, along with the higher education IT association, EDUCAUSE.

Small said that the Pledge was not a case of placating Blackboard’s detractors. “We did what was asked of us,” he said.

Blackboard’s “Internet-based education support system and methods” patent has drawn much criticism that it is too broad and covers a large percentage of all e-learning tools.

According to Small, the provisional patent appliation was filed in 1999, and the patent was granted in 2006. It covers all course-based systems of instruction where single users have multiple roles across multiple courses (in conjunction with several other functions). When Blackboard’s first iteration came out in 1998, it was a great success, he said, synthesizing user roles and increasing the ease of use for users. This, he added, has resulted in critics of the patent saying that the now-routine “obviousness” of the claims negates the patent.

“No-one was doing it (at the time),” said Small.

Desire2Learn, an education software company based in Kitchener, Ont., has already been sued by Blackboard. The company is calling for a reexamination of the patent, due to the fact that, it claims, much of Blackboard’s patent covers prior art that was not included. (Prior art is any material that is publicly available that includes the processes for doing something, whether it be an idea, development, or invention.)

“They’ve made 44 different claims, all related, but they’ve said we’ve infringed throughout there,” said Desire2Learn’s director of marketing, John McLeod. “In our view, the claims are invalid and unenforceable.”

Desire2Learn’s legal counsel, Diane Lank, said that prior art includes content developed by companies (like WebCT) that were later bought by Blackboard, and content that was developed by Blackboad itself when it was acting as a paid consultant for the IMS Learning Consortium.

The trial is set for February 2008, but an important hearing is scheduled for July, where the court will examine what exactly the patent means. McLeod and Lank said that it is difficult to pin down what exactly they are being sued for by Blackboard. “The difficulty in saying what they are suing us for, they keep saying that they’re not patenting all e-learning, not patenting all course management systems, but looking at the paper they served us in late December on infringement contentions, it sure looks like they’re doing that.”

Small said that there are many e-learning patents: “The only difference is from a PR point of view. (There is) a lawsuit, and it has become public. The defendant has definitely been very public about it.”

Ogilvy Renault intellectual property lawyer and patent expert Don Cameron said that patents were often poorly researcged in the early days of the technology age, which has resulted in many re-examinings over the last few years.

“The education community at large is pretty visibly upset, as this is counter to what they believe in. As it continues to mount, they’ve taken a move to manage that to some extent,” McLeod said.

Cameron said that the open source community might not be much of a threat to Blackboard’s business interests. “When customers seem to be developing their own open-course software, the do-it-yourself thing doesn’t always meet the needs of the cutomers, (leading Blackboard to say), ‘Well, you can still buy from us,’” said Cameron. “They’re not going after the homegrown systems because they don’t make much. (It’s like) ‘We’re not going to stop you if you’re not making any money out of it.’”

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