Blackboard, SFLC Go Head to Head at Sakai Conference

12.07.2006—How will Blackboard Inc.'s e-learning patent affect software developers? Will the patent hold up to reexamination? Is there any room for proprietary technologies in education? These topics and more were addressed at a head to head meeting Dec. 6 between Blackboard Senior Vice President and General Counsel Matthew Small and Software Freedom Law Center Chairman Eben Moglen at the 2006 Sakai Conference in Atlanta.

As we've reported previously, the Software Freedom Law Center (SFLC) last month filed a request with the United States Patent and Trademark Office (USPTO) to reexamine Blackboard's patent on "Internet-based education support system and methods." The SFLC maintains that the patent is invalid, claiming that the patent has no merit and that, what's more, there's no room in education software development for such patents. The SFLC has said that Blackboard's patent and its subsequent patent infringement suit against competitor Desire2Learn (currently in litigation) signal an aggressive move on the part of Blackboard that could stifle innovation and impact open-source developers, as well as commercial developers.

For its part, Blackboard has maintained that its patent is valid and that a reexamination by the USPTO will only serve to strengthen that patent. Furthermore, Blackboard has also said that it has no intention whats'ever of targeting open-source projects with any kind of legal action. This has not reassured the SFLC, which filed its request with the USPTO on behalf of open-source developers Sakai, Moodle and ATutor.

During the discussion at the Sakai conference, the SFLC's Moglen painted a picture of Blackboard as an aggressor and said that the reexamination is, essentially, only the beginning of a defensive action designed to "disarm" Blackboard.

Reexamination of the patent
"The present reexamination is a defensive response to an aggressive behavior," he said. "It's a part of a measured deterrence, which will commence with the reexam we have begun and will escalate as necessary until all possibility of aggression is extinct. The free world is peaceable, but it is not pacifist. Our position is simple: We respond to threats intelligently, rapidly and at low cost because we are threatened by the biggest, richest, most powerful and most aggressive entities in the world, by which I do not mean Blackboard. And it is our responsibility to see to it that the free world's ability to meet threats rapidly and with all necessary force is maintained. If Blackboard gives us an opportunity to demonstrate deterrence in an exemplary fashion, we will take it. If Blackboard offers us peace, we will take that instead gladly."

Matthew Small, however, said he d'esn't think there should be war between Blackboard and open-source developers: "There's a little bit of head scratching going on at home about the current debate between Sakai and Blackboard over the patent. We don't want Sakai to worry about the Blackboard patent at all. We want to be friendly and working together because there's a lot we can accomplish together. I feel that Sakai is fighting a war that we don't think we're in." He added later: "I hate to see our two organizations arguing over it because we really should be focused on the mission of making it better and interoperable."

He further defended Backboard's patent by saying that it's a narrow one. "Blackboard is not claiming to have invented the [course management system]; we're not claiming to have invented e-learning. I would be offended at the suggestion of that, and I think some people originally thought this patent was just that and were offended, but that's not the case. It's actually very narrow."

However, the SFLC's Moglen said, "A narrow patent is dangerous if it's used in a dangerous way, as a broad patent is. The problem with narrow patents is if you collect enough of them they become a clog for the feet of anybody who wants to do anything at all, just as one broad patent would be."

He also said that the patent never should have been granted and added that Backboard should have sat quiet with it, rather than using it as the basis for an infringement suit. "This is a piece of arrogance by a small holder who should have sat silent with a patent he never should have gotten and has instead decided to threaten people with it."

Small said the only threat from Blackboard is to commercial developers who come in and "pick up where Blackboard left off," and then come in with a competitive, commercial product. Hence the suit against Desire2Learn, said Small.

"[There's] nothing to stop a dozen people and a million dollars from going out with the current development tools, picking up where we left off and building a competitive product and going head to head, leveraging all of that invention that came before it. I think if someone's doing that for a profit, directly competing, it is appropriate to ask for a reasonable royalty. And that is the current standard among software companies."

"We are not looking to put Desire2Learn out of business," he said. "We think it's healthy competition, and we're seeking a reasonable royalty. The goal of Blackboard is not to impede innovation, [not to] stop sharing. We want collaboration; we want to grow the community of practice; we want to partner with open source...." He also reiterated, as we previously reported, that Blackboard is not targeting Sakai and that it d'es, in fact, want to support Sakai's efforts. He said the suit is "not part of a larger campaign. It's just between us and Desire2Learn—certainly not the open-source community."

The SFLC's Moglen referred to this as "fluff," warning members of the audience at the event not to accept Small's reassurances at face value.

The role of proprietary software in education
Aside from discussing Blackboard's e-learning patent in particular, Moglen and Small also presented their views on the role of proprietary software in education.

"[Proprietary software] plays a very valuable role, as evidenced by the rapid adoption," Small said. "The rest of the world is coming on quickly. K-12's coming on quickly."

Not unexpectedly, Moglen, who's organization represents open-source clients, took a radically different view:

"Its role is to slowly disappear, along with ownership of teaching materials and textbooks and the other forms of unfree culture, which have temporarily become important in the university built around the industrial reproduction of information.

"When information is contained in industrial artifacts that have non-zero marginal costs and which can't be indefinitely copied at no expense in transport or friction, it is necessary to have some structure for recouping the costs of production. In a world of free or mostly frictionless transportation of knowledge where the marginal cost of knowledge reproduction is zero, the appropriate price is zero, and the appropriate method of production is by sharing."

More background
Blackboard says it filed its patent back in 1999 and had it approved this year by the USPTO only after discussions with the USPTO, making changes to the initial application in order to accommodate prior art. Blackboard came under fire from the education community when, in July, it used that patent as the basis for an infringement suit against rival Desire2Learn. In response, individuals and organizations have urged Blackboard to relinquish its patent, and some have created blogs, Web sites and even a Wikipedia entry showing examples of prior art to invalidate Blackboard's claim. In addition, last month the SFLC filed a request with the USPTO to reexamine the claims in Blackboard's patent. The USPTO has 90 days to make a decision as to whether a reexamination will take place.

We will, of course, keep you updated as this issue progresses. See the links below for further information on this ongoing story.

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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.

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