April 2008 — News

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Blackboard Vows To Press On

by Dave Nagel

Small: I don't think we win accounts because of the patent. I think we win accounts because of the quality of our products, services, and the company that we are. I think that the invention was very well received by the community, and we developed what we patented, and people have bought it, and they license it. However, if a company such as Desire2Learn comes along and just copies the functionality and picks up where you left off without paying a royalty for it, it is generally accepted in the software world that you can seek a royalty. If they don't want to agree to one, then your only recourse is the court. And, if we're talking about patented technology, your only recourse is the patent law that we have. We can't apply a different patent law.

I think that Blackboard has been accused of using the current patent law, and much of the critique is what the patent law provides. That is a different debate from whether Blackboard is legally entitled to patent protection.

Nagel: You mean the debate is between whether this sort of thing should be patentable versus what is the current law.

Small: ... Does Blackboard have a valid, enforceable patent? That is one question. There's another question: Should the patent law allow software patents, and what should the standards be, and is there need of reform? Those are different, larger questions.

Nagel: Where do you stand on it? What if somebody came around and was able to patent, for example, having a student named Mary in a course management system, and all of a sudden your learning system can't have a student named Mary in the system? That would be an extreme example, but what's your position on what the standard should be?

Small: ... Do I think there is room for patent reform and a very healthy discussion around whether the patent system in the United States with respect to software needs repair? I would say absolutely.

However, if you say, "Well, given that, Matt, should Blackboard not protect its intellectual property?" I would say no.

There can be very healthy debate around patent reform, but, in the meantime, you seek patent protection. You follow the law that we have, and patent protection is a Constitutional, American right. This goes back to the founding of the country. How it's been applied over time to software patents is ... you know, there's a lot of discussion over where we are now, whether it's the right result or whether it should be curtailed or whether the process should be different from other areas. I think those are all very healthy debates. I think the law has changed a lot over the last two years from the courts. Standards have changed, and the laws applicable to patent cases have changed quite a bit. The law is changing all the time, and the best you can do as a public software company that's invested lots of money in your technology and your invention is to look at whatever the law is at the time and seek the protections that you have for yourself under the law, not under other laws that you wish you had.