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Blackboard, SFLC Respond to Patent Reexam
1/26/2007
"They were offended by that [idea]," he said. "Rightly so. If we were claiming that, that would be offensive. But it's not. We are talking about very specific functionality."
How specific?
Small declined to provide his interpretation of all of the claims in the patent. But he did say, "If you have a system of course-based instruction, a course-management system, and it enables a single user to have multiple roles across multiple courses, and that's done in conjunction with a whole bunch of other types of functionality: If you have an application that does that, you might want to see if you fall within [the patent's claims]."
As to the validity of the patent itself, he said, "The idea was we had to take the technology available at the time and make it truly enterprise-scale and scalable for schools so that every course wasn't an island unto itself and that someone could log on and see all their courses and see all the roles they play in those courses and move from one to another so you're student in one, instructor in another, a teacher assistant or grader or course builder, and not have to recreate your central space again and not have to log in under a different login name. And it allowed the administration to be able to look at one user and see what all those privileges were in each course. That type of role-based access control had not been previously applied in this manner in the course management system world."
He continued, "[We] ... put a lot of dollars and innovation into it and came up with a product that was revolutionary at the time. Fast-forward to now, and some people have said that's obvious and shouldn't be patentable, and we say the standard is what was obvious at the time."
In December, Small went head to head with the SFLC's chairman, Eben Moglen, at Sakai's developer conference in Atlanta. There, Moglen commented on Blackboard's claim that the patent is narrow: "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."
Proprietary software and software patents
SFLC Chairman Moglen has come out strongly against proprietary software, claiming that it has no role in higher education but "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." Those comments were made last month at the Sakai conference in Atlanta.
Said Small, "There are two different debates out there. One debate is around whether software should be patented generally. And then there's one around the merits of the Blackboard patent. And I think that the Software Freedom Law Center is dedicated to the termination of software patents. They don't believe software should be patentable. Those are two very different arguments."
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