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Update: Blackboard Clarifies Patent Pledge
2/1/2007
2/1/2007—Earlier today, we reported that Blackboard had released a legally binding pledge stating that the company would not assert its patent rights against open-source developers in the CMS space or against developers of "home-grown" systems. That pledge also covers those who service such systems, including hosting, maintenance, support and customization. Concurrently, critics of Blackboard's patent--in particular trade group EDUCAUSE and open-source developer Sakai--released a joint statement on the Blackboard patent pledge, supporting it but with some caveats. We had a chance to speak to Blackboard representative Matthew Small today to get some clarifications on the pledge.
Background on the patent
First, for those of you who are unfamiliar with the Blackboard patent saga to date, it began essentially in early 2006 when Blackboard 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 2006, 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. (See link at the end of this article.)
Then, in November of 2006, an organization called the Software Freedom Law Center (SFLC) filed a request with the United States Patent and Trademark Office (USPTO) to reexamine the patent on the basis of its assertion that Blackboard's patent was invalid owing to the existence of "prior art," or examples of the technologies Blackboard had patented that existed prior to Blackboard's patent application. That request was filed on behalf of the SFLC's clients Sakai, Moodle and ATutor, all organizations that develop open-source course management systems.
The request was granted by the USPTO last month, and so the reexamination process on the validity of the patent is underway, though results may not be forthcoming for years.
A little bit later, Desire2Learn filed its own, more complex request for a reexamination with the Patent Office, and that request has been assigned to the the same examiner in the USPTO who is handling the SFLC request. Further information on that particular aspect of the reexamination is not available as of this writing, but Blackboard's patent-infringement suit against Desire2Learn continues in court.
Blackboard, all along, has stated and maintained that it would not focus on schools or open-source developers in terms of enforcing its patent. However, members of the pen-source community and the education community both expressed fears that the patent and the lawsuit against Desire2Learn would have a chilling effect on development of CMSes and generally impact these communities negatively.
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