Update: Blackboard Clarifies Patent Pledge

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Update: Blackboard Clarifies Patent Pledge

2/1/2007

By David Nagel

The patent pledge
So, today, Blackboard answered some of those fears—and one of the demands that the SFLC had placed on the company—by releasing a formal, legally binding pledge that it would not enforce its patent against open-source developers, naming all of the developers who work in the CMS space, or against those who support those products, either commercially or otherwise. That includes those who host, customize, maintain or otherwise support those open-source products. The pledge also covers those who develop "home-grown" CMS systems for schools, colleges and universities.

Today Sakai and EDUCAUSE, two vocal opponents of Blackboard's patent, released a joint statement generally supporting the Blackboard patent pledge, the complete text of which can be found below. But there were some reservations in that statement, particularly about the portion of Blackboard's pledge excepting "bundled" software from protection.

In an effort to clarify what this term means in this pledge, we spoke today with Matthew Small, senior vice president and general counsel for Blackboard.

Clarifications on the pledge
Small indicated to us that, in essence, all open-source developer and developers of home-grown systems are covered by the pledge of non-assertion.

"There's a lot of unfounded fear and misunderstanding out there," Small said. "So we listened to the community, and we are making this legally binding commitment in writing so that people can have home-grown systems and open source and can provide commercial services around them and not have to think about the Blackboard patent. We were never going to sue open-source [developers] or home-grown systems [developers] anyway, which we tried to communicate as much as we could up to this stage. And by putting it in writing, not only do people trust it more, but they also have all of the necessary detail they need to get to the level of comfort that they need."

Specifically, he said, "The patent pledge covers open-source and home-grown systems and commercial providers of support, hosting, customization and maintenance around them. It doesn't cover competitive, proprietary software companies."

But the "bundling" exception in the pledge still seems to be a concern to some. So Small explained it further: "In order to ensure that proprietary software companies who infringe don't get around our patent by making a portion of their applications open source, we had to include this concept of bundling so that a proprietary software company that has some open source in it still does not fall within the pledge. But we were very sensitive to the fact that some open-source initiatives bundle proprietary components within their applications. So we specifically named every open-source initiative in the CMS space we could think of and said, 'Whether or not you combine your open source with proprietary components, you're covered by this pledge.' And we've gone even further to specifically point out that the commercial hosting, support, and customization of those applications are also covered and made it worldwide and added our pending patents on CMS to the pledge as well."