Blackboard Responds to SFLC Filing

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11.30.2006—Earlier today we reported that the Software Freedom Law Center (SFLC) filed a request with the United States Patent and Trademark Office (USPTO) to reexamine Blackboard Inc.'s e-learning patent on behalf of three open-source developers. Tonight we talked with a representative from Blackboard about the filing—which is the first such formal request to the USPTO since Blackboard's patent was granted back in January—and have his comments on the SFLC's action.

Blackboard is, of course, a developer of software and services for the education market. The company became the focus of contention within education technology circles when, earlier this year, it obtained a patent for "technology used for Internet-based education support systems and methods" and then filed a patent-infringement suit against rival Desire2Learn in July. Individuals and organizations, including EDUCAUSE, opposed the moves by Blackboard. In October, EDUCAUSE President Brian L. Hawkins wrote a letter to Blackboard CEO Michael Chasen requesting that Blackboard "disclaim the rights established under [Blackboard's] recently-awarded patent, placing the patent in the public domain and withdrawing the claim of infringement against Desire2Learn." That letter was approved unanimously by EDUCAUSE's board of directors Oct. 8 and 9 and became public in late October. (See link below for full text.)

Other individuals have created blogs and Web sites to refute Blackboard's patent claims and to show evidence of prior art. Some went so far as to create a Wikipedia entry (called "History of virtual learning environments") detailing examples of technologies and methods claimed by Blackboard. Examples in the entry date from 1728 to 2006. (See link below.)

SFLC describes itself as an organization that provides pro-bono legal services for developers of free and open-source software. This latest action by the SFLC is a formal request to the USPTO to reexamine Blackboard's patent. It was filed Nov. 17 on behalf of Sakai, Moodle and ATutor, according to the SFLC. These are three open-source electronic learning projects that could be affected by Blackboard's patent, although Blackboard denied to us that open-source developers are being considered as targets for patent-infringement suits.

Matthew Small, senior vice president and general counsel for Blackboard Inc., told T.H.E. Journal: "Because we brought a lawsuit against a for-profit competitor, people are worried that we'd bring lawsuits elsewhere. We've been very proactive in telling schools and the open-source community that we're not interested in them. [We] support Sakai and Moodle. We'd like to talk to them, engage with them, but they've said that they don't want to talk to us."

In a prepared statement released Thursday, Eben Moglen, executive director of SFLC and professor of law and legal history at Columbia University, said, "In a free society, there is no room for a monopoly on any part of the educational process. We are confident that there is enough prior art for the Patent Office to open, reexamine, and ultimately revoke all of the patent's claims."

"I think that kind of overly broad, inflammatory language is illustrative of the [SFLA]'s approach in representing Sakai and Moodle," said Blackboard's Small in response to Moglen's statement. "What he's saying is there's no room for patents in education. It's important to the education community that commercial providers and universities have the ability to invent and invest and publish their inventions without fear that people will just step in and claim them as their own and piggyback ... on their investments."

He also said that the filing was not unexpected and that he sees it as a "marketing tactic": "The patent has become somewhat of a marketing tool for them, and things like this reexam I think are more focused on marketing tactics than the patent itself."

In a prepared statement released earlier Thursday, representatives from Moodle, Sakai and ATutor also commented on Blackboard's patent and the impact they think it could potentially have on the development of educational software.

"The educational software community has for decades thrived on the open discussion and transmission of ideas," said Joseph Hardin, Sakai Foundation board chairman. "We are deeply concerned that Blackboard's broad patent will stifle innovation in our community."

Blackboard's Small said he doesn't see it this way. "The most important thing is that Blackboard though its actions has always been an advocate of openness, innovation, collaboration and the development of a large community of sharing," Small said. "And we wouldn't do anything to stifle that innovation. We've never done anything [negative directed toward] any open source group."

Small also said that Blackboard had approached Sakai about the issue and had offered a free license to the open-source project. However, he said that Sakai gave Blackboard a 10-day ultimatum to provide a non-assertion policy for this patent "and any patent Blackboard ever obtains for any open-source use [and] for any commercial [use]," Small said, calling the demand "unprecedented and unreasonable."

A statement released by the SFLC Thursday claimed that Blackboard's patent "grants Blackboard a monopoly on most educational software that differentiates between the roles of teacher and student until the year 2022."

"A patent on an educational concept—namely the relationship among students, instructors, and administrators—makes no sense," said Greg Gay, project lead of ATutor. "Such ideas are public and have been practiced for centuries; they are not the result of research and development."

But Blackboard's Small said that this is a misconception. "This is not a patent on the difference between the role of the teacher and student. I think that's just an incorrect characterization."

He also added that any reexamination of the patent could actually work in Blackboard's favor. "We welcome another look at the patent and believe that a reexam will only serve to strengthen the patent. [We're] confident in the strength and validity of the patent and think [the reexamination] will not raise any new issues."

"I hope people don't attach more importance to this ex parte reexam than they should," Small said.

We will bring you further updates as they become available. The USPTO has three months to decide whether or not to reexamine Blackboard's patent.

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About the author: Dave Nagel is the executive editor for 1105 Media's educational technology online publications and electronic newsletters. He can be reached at dnagel@1105media.com.

Have any additional questions? Want to share your story? Want to pass along a news tip? Contact Dave Nagel, executive editor, at dnagel@1105media.com.

About the Author

David Nagel is the executive producer for 1105 Media's online K-12 and higher education publications and electronic newsletters. He can be reached at dnagel@1105media.com. He can now be followed on Twitter at http://twitter.com/THEJournalDave (K-12) or http://twitter.com/CampusTechDave (higher education). You can also connect with him on LinkedIn at http://www.linkedin.com/profile/view?id=10390192.

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