Campus Technology

THE DAY THE INNOVATION DIED?

Could CMS innovation be stalled by Blackboard’s patent and its patent infringement suit?

When Blackboard announced patent #6,988,138 on July 26, 2006—and then on the same day sued Desire2Learn for infringing on its patent—the company became for many what one observer called the “Darth Vader” of the CMS community. In the intervening months, bloggers, magazine columnists, and organizations have weighed in with opinions, almost uniformly negative. Both Sakai and Educause have issued public statements against the patent and the lawsuit. The patent suit also has inspired Boycott- Blackboard.org, which features an informal petition, and was a concept put forth by a group of educators who have come to know each other in the Second Life virtual world. BoycottBlackboard’s developer Chris Hambly (director of a distance learning school for music production solutions) says that because learning management systems have been around for so many years in various forms, practitioners find the Blackboard patent “plainly wrong.”

Not surprisingly, the entry for “history of virtual learning environment” on Wikipedia has gone into update overdrive, with numerous contributors methodically building a detailed history of the evolution of CMS-type technology in order to prove “prior art,” and thereby dispute the validity of Blackboard’s patent.

And on CALIopolis, John Mayer (executive director of the Center for Computer- Assisted Legal Instruction) has posted audio interviews with legal experts discussing the patent and the suit. Professor Vincent Chiapetta of Willamette University (OR) College of Law cautioned against vilifying Blackboard (“Patent holders aren’t bad guys…”). Eduventures Senior Analyst Catherine Burdt views the patent as a strategic move, claiming she has “seen where [patents are] almost used as trading cards, in terms of one company holding a patent for some type of algorithm and another company holding another patent for another algorithm, so you need each other.”

Blackboard CEO Michael Chasen (left) claims that much of the fear that this will be just the first of many lawsuits, is misguided. “It would make no sense for us, from a strategic or financial perspective, to sue the colleges and universities that make up the majority of our clients,” he maintains. “It’s hard to calm irrational fear, but…this is not part of some larger overall plan. We’re aware of the Desire2Learn technology. We believe they are infringing on our patent and we are seeking a reasonable royalty because we believe they’re taking advantage of the technology that we spent a lot of money to develop.”

Yet, part of the growing alienation against Blackboard may revolve around the very idea of getting patents. Still, Chasen insists, “Institutions themselves are some of the biggest patent holders, right?” pointing to the fact that some institutions hold “huge” patent portfolios. “It’s something you’ve got to be open about and discuss,” he says.

Other vendors fear being the next target. Says Angel Learning’s Chief Products Offi- cer Ray Henderson, “Desire2Learn was the most vulnerable and thus the first victim. The usual strategy on these things is to try to succeed against the weakest member and use that momentum to go against the next weakest member.” He fears that as a result of the suit, the free exchange of ideas that g'es on in higher ed will be lost. “If people begin to believe that the information they offer…could become patented by another company that listened to it and thought that was a good idea, it could sure dry up the standards bodies very quickly.” Those sentiments are ech'ed by Desire2Learn CEO John Baker, even though he is adamant that the suit hasn’t slowed the company’s CMS innovation. “But it may force us to reevaluate our willingness to share that innovation openly.” That could be the feared potential outcome: “The innovation d'esn’t necessarily stop, but the open innovation could,” he warns.

According to MIT’s Phil Long, senior strategist for the school’s Academic Computing Enterprise, “By and large, the open source community is sufficiently active, robust, and diverse to persist. [Any number of] people will stand up to stake their own claims for prior art. It’s going to be a long time before this gets worked out.” In fact, Long predicts a renewed interest in open source efforts such as Sakai. By tucking CMS innovation efforts under the Sakai umbrella, he says, “if I get sued, then everybody in Sakai gets sued, and I’ve got more strength.”

Ultimately, says the University of Wisconsin’s Kathy Christoph, director of academic technology in the school’s IT division, the patent will “cut down our number of choices, if it stands. Little companies aren’t going to be able to know how to navigate the waters.” And while she sees the potential for a stranglehold on innovation, she’s also “curious whether people will then just break out of that thinking and head in a different direction with broader innovation. We have a long way to go in creating technology tools to support learning.”

What of the administrators currently shopping for a new CMS? “Frankly, we don’t have time to worry about it,” says Candice Dalrymple, director of the Center for Educational Resources at Johns Hopkins University (MD).

Update: On Nov. 17, 2006, the Software Freedom Law Center (which provides probono legal services to protect and advance free and open source software) filed a formal request with the US Patent and Trademark Office to reexamine Blackboard’s eLearning patent, potentially leading to the cancellation of all of Blackboard’s 44 claims. The Patent Office will render a decision by mid-February.