Thoughts on CMS Patent Controversies

• 08/15/06

By Frank Tansey, Co-Editor

Head down and working on the road, I missed last week’s court filing by Blackboard, Inc. against Desire2Learn, Inc. for infringement of Blackboard’s recently-received course management system patent. Arriving back home, it didn’t take too long for me to begin hearing the chatter across the eLearning community – first a press release from a Blackboard competitor, then a series of posts in a number of blogs I follow. Then a quick Web search revealed the rising interest in this issue within the eLearning community.

A quick review of the posts is decidedly anti-Blackboard. Comments frequently describe the patent as overly broad and as a threat to all forms of course management system. A significant number of posts cite the existence of prior art, including systems that predate the existence of Blackboard even as a company. In fact, a number of individuals are contributing to a History of Virtual Learning Environments on Wikipedia as proof that the patent should not have been granted in the first place.

When I contacted Blackboard to discuss this issue, I was routed to Matt Small, senior vice president and general counsel for Blackboard. Mr. Small paints a rather different picture. His take was that the patent was not too broad and covered only certain functions of course management systems. His point was that, prior to the creation of the product that was the basis of the patent, course management systems were not Enterprise grade. They functioned on a smaller scale and didn’t provide the scope of features for which the patent was granted. He further contests the assertion that Blackboard has received a patent that covers all functions of a CMS as some have claimed.

In our discussion, Mr. Small cited one example from the 44 items covered in the patent: the concept of a single user having multiple roles in multiple courses. It is hard for someone involved in eLearning for so long to fully turn the clock back to 1999, the initial filing date for the patent, to definitively challenge the claim that this was a new feature at the time. Still, from recollection of other systems that predate the filing, I would have to believe that this was not a newly invented concept. As it is appropriate to disclaim, however, I am not a lawyer, and the intricacies of patent law are beyond my field of expertise.

Patents, especially conceptual software patents, clearly divide much of the software and educational community into warring camps. Should the hard work in creating a new form of software be protected? Certainly, if the creator finds it necessary to protect these creative efforts from competition, a patent may be an appropriate tactic. On the other hand, there a long tradition in the academic community for sharing the results of similar hard work and dedication so that others may pick up the torch and advance the endeavor. So is this just a case where the culture of business to protect its interests is clashing with the culture of the academy to foster research and share the results with the world? I think not.

In 1997, as part of the founding team that created IMS, I participated in the creation of the initial use case documents that became the basis for the creation of IMS specifications. Blackboard was a participant in this scope-setting effort. Gathered at the table were major thought leaders in the world of eLearning. Thus some of our use cases were clearly informed by systems in existence, while other cases were a result of practitioners defining the evolving needs for course management systems. The underlying goal was to create specifications that would enable eLearning systems to move forward more rapidly than would be possible with a host of proprietary and often non-interoperable systems.

The first deliverable developed by IMS was the so-called .5 version. The capabilities of this version were a dramatic step forward for the state-of-the art systems of the time. Under the direction of the IMS technical director, this system was specified, designed, and ultimately built. The contractor for this version was Blackboard – then a small group of consultants who had yet to enter the CMS marketplace. The .5 version was an IMS project, and, had it been released, it would have been freely released for all to use. IMS would hold the copyright but no fees would have been collected from any user.

Ultimately, the focus of work on the .5 version – creating working code – was tabled. Some still believe the .5 version was simply a matter of IMS jumping too far ahead of the market. IMS shifted its efforts to creating specifications that others would implement rather than creating specifications with sample code. Blackboard having procured its first CMS, it changed its focus from a consulting group to a CMS vendor. Blackboard remained at the table, as an IMS member, contributing to the development of specifications.

So how d'es this IMS scenario add to this controversy? Blackboard was clearly a beneficiary of the collective talent at the IMS table. A consortium of members that included industry leaders, higher education institutions and consortia, and governmental entities created the IMS specifications. Some at the table were bitter rivals, others were consumers of the technologies, and all were sharing their knowledge to advance the development of eLearning.

As I observe this controversy, I have a hard time leaving this vision of IMS collaboration out of the picture. I am not asserting that Blackboard did not create the 44 items in their patent. I am not arguing that Blackboard should not be entitled to appropriate patent protection. I am, however, concerned that the culture of “standing on the shoulders of giants” is damaged by enforcing a patent against a competitor. I can only wonder how much Blackboard and any of the CMS vendors have gained from the culture of the academy, and I can only wish that such a suit were not necessary.

Frank Tansey is a technology consultant and co-editor of the SmartClassroom eLetter (formerly Technology-Enabled Teaching).