Blackboard Pledges Non-Assertion of Patent on Open Source Developers
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2/1/2007—In a surprise twist on the ongoing controversy over Blackboard Inc.'s e-learning software patent, the company today announced that it will not assert its patent rights against open-source developers. Blackboard had maintained previously that it was supportive of the pen-source community and that it would not be looking at those developers as targets for patent litigation, but it had stopped short of making a formal pledge until today.
Blackboard is 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 2006. 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 2006. (See link below for full text.) In November 2006, the Software Freedom Law Center (SFLC) filed a request with the United States Patent and Trademark Office (USPTO) on behalf of open-source developers Sakai, Moodle and ATutor to reexamine Blackboard Inc.'s e-learning patent. That request was granted by the USPTO in January, and the reexamination is presently underway.
"As a member of the e-Learning community, we are committed to the open exchange of ideas, collaboration and innovation," said Michael Chasen, president and chief executive officer of Blackboard, in a prepared statement. "This pledge is part of that commitment and our continued efforts to work collaboratively with the e- Learning community to foster greater openness and interoperability."
In a prepared statement released today, Blackboard said, "Specifically, the Pledge commits Blackboard not to assert U.S. Patent No. 6,988,138 and many other pending patent applications against the development, use or distribution of open source software or home-grown course management systems anywhere in the world, to the extent that such systems are not bundled with proprietary software.
As part of the Pledge, Blackboard promises never to pursue patent actions against anyone using such systems including professors contributing to open source projects, open source initiatives, commercially developed open source add-on applications to proprietary products and vendors hosting and supporting open source applications. Blackboard is also extending its pledge to many specifically identified open source initiatives within the course management system space whether or not they may include proprietary elements within their applications, such as Sakai, Moodle, ATutor, Elgg and Bodington.
Commitments to limit potential patent protection are uncommon, particularly for enterprise software companies. The Patent Pledge—in terms of its sweeping scope, strong commitment and public nature—is unprecedented for a product company such as Blackboard.
Source: Blackboard's prepared statement
Sakai and EDUCAUSE, responding to Blackboard's announcement, released a formal statement today as well. The complete text of that response follows.
The boards of directors of the Sakai Foundation and of EDUCAUSE recognize the patent pledge announced on February 1, 2007, by Blackboard as a step in a more positive direction for the community, to the extent that it offers some comfort to a portion of the academic community that uses open source or homegrown systems. In the pledge, Blackboard states that it will not assert certain patents against open source or home grown systems bundled with no proprietary software. We particularly welcome the inclusion of pending patents, the clarification on the commercial support, customization, hosting or maintenance of open source systems, and the worldwide nature of Blackboard’s pledge. We also appreciate the willingness of Blackboard to continue with frank and direct dialogue with our two organizations and with other higher education representatives and groups to work toward addressing these problems of community concern.
Although Blackboard has included in the pledge many named open source initiatives, regardless of whether they incorporate proprietary elements in their applications, Blackboard has also reserved rights to assert its patents against other providers of such systems that are "bundled" with proprietary code. We remain concerned that this bundling language introduces legal and technical complexity and uncertainty which will be inhibitive in this arena of development.
As a result, the Sakai Foundation and EDUCAUSE find it difficult to give the wholehearted endorsement we had hoped might be possible. Some of Sakai's commercial partners and valued members of the open source community will not be protected under this pledge. Furthermore, EDUCAUSE and Sakai worked to gain a pledge that Blackboard would never take legal action for infringement against a college or university using another competing product. While Blackboard ultimately agrees that such actions are not in its best interest from a customer relations viewpoint, it could not agree for reasons related to its existing legal case. Our organizations will remain vigilant on this point as protecting our member institutions is of top priority.
While this pledge offers a formalization of Blackboard's past claims about the intent of its patents, it does not speak to the quality or validity of the patents themselves. Sakai and EDUCAUSE maintain the position that Blackboard’s U.S. patent number 6,988,138 is overly broad, and that the U.S. Patent and Trademark Office (USPTO) erred in granting it to Blackboard. Furthermore, we believe that this conclusion will ultimately be decided by the re-examination of this patent through the USPTO and in the current litigation.
Source: EDUCAUSE/Sakai joint statement
We hope that all of the organizations and individuals interested in educational technology will continue to focus our collective energies on improving software, and system and data interoperability with the ultimate goal of delivering truly innovative solutions to all teachers and learners.
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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 [email protected].
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