Patently Offensive

By Terry Calhoun

Could there be any clearer evidence that the United States patent system is dysfunctional, than the patent awarded to Blackboard? Well, yeah, if you look at the filings, they can get pretty absurd. And now there are whole companies that have never done anything and they’re buying up old patents and finding new ways to clobber people with them.

But this one hits close to home, so we in higher education don’t have to look any further. We know about the history of course management systems: It is our own history. And now Blackboard thinks that it owns it. (But we don’t have to worry because it likes universities and nonprofits. Whew!)

I once interviewed then-Blackboard CEO Matthew Pittinsky for the newsletter of a now-defunct association of Internet professionals. I remember walking into a big, grey Washington, DC building, past the offices of Mitsubishi of America, and entering the Blackboard lobby, which had a foosball table and several, red beanbag chairs, plus a dry-erase board on the wall charting the number of institutions that had at that time at least one faculty member who had adopted Blackboard for use in a course. The numbers were still in double digits.

I’ve watched Blackboard since even before that visit, as well as its commercial competitors and the various open source (Sakai) and proprietary versions. It is patently ridiculous and offensive to the brain to imagine Blackboard legitimately owning a patent that would limit the option for others to implement the basics of course management systems. We all participated in the development of this product. When I visited Blackboard HQ, I didn’t see anyone who looked older than high school age. The whole early business model was clearly predicated on getting users to use it for free and in so doing being participants in the development of the functionality, bringing their maturity and expertise to bear on the development of the tool. As one recent Campus Technology article puts it:

Nearly all of today’s commercially available Learning Management Systems started off as homegrown university systems that were later commercialized. For example, Blackboard started at Cornell University, WebCT [now merged with Blackboard] at University of British Columbia, and Desire2Learn at University of Waterloo. If a group on your campus wished to develop an LMS today, what would be your legal advice on the matter?

Can I put it any stronger? Yes. It is far more likely that there really were WMDs in Iraq when we invaded than that Blackboard deserves this patent. As EDUCAUSE eloquently put it in a letter delivered to Blackboard last month:

[C]ourse management systems “were conceived and developed among faculty in pockets of innovation throughout the world. They originated simultaneously at a number of institutions,” as stated in the award announcement. One of the reasons course management systems were singled out for this award is because of the “fluid movement of ideas and initiatives between academia and the commercial sector as individual limited-use efforts evolved into enterprise-wide systems.” Our community has participated in the creation of course management systems. A claim that implies this community creation can be patented by one organization is anathema to our culture.

I am grateful, once again, to EDUCAUSE for bravely standing up and facing this nonsense. I am not surprised that it is opposed by EDUCAUSE. After all, one writer reported that the recent EDUCAUSE conference might well be called the Blackboard Patent Conference because “I did not attend a single session in which somebody did not make a derisive comment or joke about it.”

I also wish Desire2Learn good luck and legal expenses in the affordable range in its fight against the Blackboard lawsuit. For balance, here is Blackboard’s FAQ on the patent and here is Desire2Learn’s resource page.

Note that these parties are in litigation and the pages represent their opinions only, except that some of the links on the Desire2Learn page are to people in the academic community who agree with it, not with Blackboard. (There may be some who do agree with Blackboard, but an hour of Googling for specifically that did not reveal any to me.)

One thing that not many understand is that the patent approval process is not an adversarial one. You apply for a patent, you also provide the evidence for your having a patent, and the patent office grants it, or not. Few have the resources to counter the chilling effect of a granted patent if it is held by a company with significant resources, because to defeat it you basically have to fight the patent holder in court after it got the patent, which gives it a huge advantage from the get-go.

It might be interesting to see what kinds of agreements early Blackboard adopters signed in terms of their rights in a product for which they were a measurable part of the development team. Do they exist? If so, what do they say? I found some at the Wayback Machine but none older than 2000. By 2000, there is a fairly tight user agreement. Desire2Learn is actively soliciting from people old digital files or paperwork relating to Blackboard development and I urge people to see what they have and to share it:

We are continuing to gather examples of prior art and appreciate the outpouring of help that has come from the higher-ed community and elsewhere. At this time we are seeking specific user manuals and documentation dated June 1999 or earlier from any of the following vendors: Blackboard, Prometheus, Web Course In A Box, WebCT, VirtualU, Lotus. MadDuck Electronic copies can be mailed to PriorArt@desire2learn.com and Hard copies mailed to: Prior Art c/o Desire2Learn 72 Victoria Street South Suite 401 Kitchener, Ontario N2G 4Y9 Canada Thank you again for your assistance, it is greatly appreciated. Specific Prior Art Request

There’s a big bad wolf in the woods of learning. It could, as other companies have done, issue licenses for use of its patent to all of the nonprofits and universities that it says it will never bring suit against. But what are those odds? They seem to have melted to zero when Blackboard decided that innovation and customer service weren’t as good as wielding a large club.

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