Blackboad Patent Crisis: Week 3 in Review

Bluescape

Week 3 of the Blackboard Patent Crisis saw the circle of coverage grow from beyond the boundaries of the higher education community to include thought leaders in the open source, technology, and standards communities. On the litigation front, the Sakai Foundation announced that it would mount its own legal challenge to pre-empt the assault on open source projects. Meanwhile, Blackboard continued to insist that its patent is "limited" though it declined to clarify further.

18 August, 2006:

• Simon Phipps (Chief Open Source Officer, Sun Microsystems) calls for "root and branch" patent reform. "The real issue is that today's software patents breach the social contract on which the concept of a patent is based." Phipps writes ("Breach of Contract") in his personal blog WebMink,  "I'm convinced that the reform that's needed is a root-and-branch reform of the very concept of the patent, carried out in the light of the facts that the network is the computer and that open source is its soul." Commenting on Phipps and calling into question Blackboard's position, Dana Blankenhorn (internet journalist) writes in ZDNet ("Phipps calls for Patent Reform") that patents were "designed to acknowledge and spur innovation, not work against it."

• Inside Higher Education publishes article, "Blackboard: Bully or Misunderstood?".  Blackboard's general counsel Matthew Small asserts that "there’s a fundamental misunderstanding of what [the patent] represents and what it doesn’t represent.”. Small also re-iterates that Blackboard does not intend to challenge open source projects on patent issues. However, he declines to answer "whether Blackboard believes that open source projects are infringing on the company’s patent rights." The article is also accompanied with comments by Charles Severance (Executive Director, Sakai), Stuart Sim (Chief Architect of Business Solutions Group, Sun Microsystems ), Steve McCarty (President, World Association for Online Education), Michael Feldstein (eLiterate), Stephen Downes (Stephen's Web) and others.
  
  
• Desire2Learn retains Foley & Lardner, LLC s as its lead counsel in patent litigation with Blackboard. According to John Baker( D2L CEO) in a letter to D2L clients, "Foley & Lardner is a highly regarded national firm that combines both the litigation experience and the technical knowledge to ensure a quality defense.  In addition, we have secured an extension of time in which to file our first formal response to the suit, which is now due in September."

17 August, 2006:

• Sakai Foundation retains Software Freedom Law Center and Eben Moglen to advise on elearning patents threat, noting that Blackboard's attempt "to assert patent rights over simple and longstanding online technologies as applied to the area of course management systems and e-learning technologies, and its subsequent litigation against a smaller commercial competitor constitutes a threat to the effective and open development of software for higher education and the values underlying such open activities.

14 August, 2006:

• BECTA (British Educational Communications and Technology Agency) issues guidance about the  Blackboard patent to all companies involved in the UK Schools Sector Learning Platform Tender. The BECTA guidance emphasizes three points:
  • Since US patents do not have jurisdiction in the UK, the Blackboard patent will not have immediate impact on the BECTA procurement process.
  • Blackboard has made four European patent applications through the European Patent Office (EPO). The EPO process is complex and lengthy, taking at least 5 years, and includes a thorough international search for prior art. The initial examination report considers Blackboard's claims not to be novel.
    
• If the Blackboard applications are approved by the EPO, they will have have force as UK patents. However, in the event of litigation the UK courts will analyse the validity of the patent from first principles, i.e. "the patents are afforded no 'presumption of validity' merely because they have survived examination of the EPO."

• Michael Geist, Canada Research Chair of Internet and E-commerce Law at the University of Ottawa, prolific author and frequent commentator on technology issues, devotes his weekly column to the Blackboard Patent Case. ("Shades of Another Battle of Waterloo", Toronto Star). ("Patent Battle Over Teaching Tools", BBC News Online)

13 August, 2006:

• IMS Global Consortium CEO Rob Abel invites Blackboard for a question and answer session on September 5th with IMS representatives. In an email to IMS Members, Abel reports having "received quite a few emails and phone calls regarding the recent Blackboard patent announcement and its potential impact on the work we do in IMS....I think there have been many legitimate concerns raised."

• Tim O'Reilly (O'Reilly Radar, Founder and CEO of O'Reilly Media) calls attention ("Blackboard Elearning Patent") to the Blackboard Patent.  An excerpt from Tim's bio: "Tim is an activist for open source and open standards, and an opponent of software patents and other incursions of new intellectual property laws into the public domain."