SFLC Wants Reexamination of Blackboard Patent

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11.30.2006—The Software Freedom Law Center (SFLC) has filed a request with the United States Patent and Trademark Office (USPTO) to reexamine Blackboard Inc.'s e-learning patent. SFLC is an organization that provides pro-bono legal services for developers of free and open-source software.

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.)

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. The SFLC said in a prepared statement that the request to the USPTO cites documents that predate the filing of the Blackboard patent "and describe everything claimed in it."

Said Eben Moglen, Executive Director of SFLC and professor of law and legal history at Columbia University, "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."

In a prepared statement, representatives from Moodle, Sakai and ATutor also commented on Blackboard's patent and the impact 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 patent is patently unjust, as it covers ideas that were widely known and implemented before it was granted," said Martin Dougiamas, founder of Moodle. "It's part of a disturbing trend of patents that seek to lock up obvious cultural ideas as the property of individuals."

"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."

At press time, we had not yet received a response from representatives of Blackboard on the SFLC's action. But Blackboard has since provided T.H.E. Journal with a response to the SFLC filing. You can find the updated article, with Blackboard's comments, at http://www.thejournal.com/articles/19712. According to the SFLC, the USPTO has three months to decide whether it will 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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