Flexknowlogy

Campus Technology reports that all 44 of Blackboard’s LMS-related patent claims were rejected by the U.S. Patent and Trademark Office based on 10 issues raised in a reexamination request filed by the Software Freedom Law Center (SFLC) in November, 2006.

Blackboard has two months to respond to the USPTO’s determination, and we can bet they will bankroll as big a response as possible. Surely their recent victory against Desire2Learn for patent infringement will fuel their strength of will to fight. For my part, Bb’s lawsuit leaves me wondering if allowing the lawsuit to stand trial while a USPTO reexamination request was under review was not just premature, but also extremely wasteful of our tax dollars and court time.

Desire2Learn announced on February 22nd that Blackboard has won its patent infringement lawsuit against them, stating, “the jury has handed down its verdict that the patent is valid and that Blackboard should be awarded damages of approximately $3 million.”

Blackboard filed the lawsuit on July 26, 2006 against competitor Desire2Learn based on intellectual property claims related to it’s Blackboard’s U.S. patent #6,988,138. Blackboard has argued that it had invested 100 million dollars in the development of the educational products protected under the patent. (NoEduPatents.com has made an explanation of Blackboard’s 44 patent claims.)

Backlash to the Blackboard patent by the open source and educational communities has been strong since news of the lawsuit first broke, and will likely continue through communities such as boycottblackboard.org. I personally did not expect Blackboard’s claims would be upheld when re-examined by the patent office, let alone that the lawsuit would be validated by the jury.

Because the patent claims are broad and impact so many common e-learning features, Blackboard’s legal victory is bound to be discouraging and troublesome to other commercial learning management system providers such as Angel Learning, eCollege, and Agilix. Blackboard has previously declared that it would not assert it’s U.S. patents against open source software development, e.g. Moodle and Sakai.

Does this apparent magnanimity bolster my favor for Blackboard? Certainly not; the position is superficial at best, and Blackboard knows it. Anyway, it’s beside the point: though I personally lean towards open source software for educational technology, I am a capitalist, and free market competition and consumer-driven innovation of services and products is important to me. Blackboard’s overblown patent claims are an affront to innovation and competition, taking advantage of systemic failures in U.S. Patent regulations.

And though some will dismiss this news based on the argument that even conceptually the LMS has inherent flaws (failure to keep up with current technologies, inauthentic, lack of learner ownership, creepy-tree-house, etc), I believe the LMS is still a valuable toolset for many. The LMS has has propelled e-learning into a new frontier by standardizing the basic communication and delivery features for an educational audience. The LMS’s ability to provide teachers an easy-to-use set of online educational tools in a one-stop-shopping experience is and will remain considerable for the next 5 years at least. (The unfortunate reality is that alternative networked education “systems” such as personal learning environments are still being thought out and developed–at the very least alternatives are probably not ready for widespread adoption and implementation by faculty members.)

Regardless of whether you’re pro-LMS or anti-LMS in general, I think the larger debate about software patents particularly when applied to education is an issue we in ed tech all have a stake in. At the ITC conference last week I picked up a witty t-shirt given to me by The rSmart Group that signifies the position of many:

Sources

• Desire2Learn’s Patent Lawsuit Blog
• Blackboard’s Patent Info Page
• Blackboard’s U.S. patent #6,988,138
• NoEduPatents’s Explanation of Blackboard’s 44 patent claims
• Groklaw: Reexamination of Blackboard Patent
• Wikipedia: Software Patent Debate
• BoycottBlackboard.org