Anatomy of a Trivial Patent: Blackboard's Notorious "44 Claims"

The essence of a patent is embodied in the language of its "claims". As John McNett (patent attorney) notes, "the law requires that the invention be interpreted with the patent claims as the starting point" and not other parts of the patent filing such as the abstract, the diagrams, or the appendices.

By now I have read the Blackboard patent carefully, including the notorious "44 claims". Despite what Blackboard has said in public, the claims taken together describe a generic system for e-learning and potentially covers every learning tool, present or future.

Think of the "44 claims" as describing the Platonic Form for e-Learning. If you understand what the "44 claims" describe you will understand the scope of Blackboard's patent grant or patent grab, depending on your interpretation.

Blackboard's "invention" describes a generic learning system and a corresponding set of methods.    The "44 claims" cover any system which supports students interacting with instructors in an online course setting. Interaction simply means the manipulation (read, write) and exchange (asynchronous, synchronous) of data files. It's that simple. It's also frighteningly comprehensive because it can be interpreted to cover not only learning management systems but standalone tools such as blogs, wikis and online chat when used in the context of a course. The patent could also be interpreted by the courts to cover any other elements (e.g. e-commerce engine, card systems, ERP connectors) that integrate with the basic system.

The method of the patent can be viewed as covering the bookeeping aspects of the interaction between student and instructor. If we have an e-learning system (students interacting with instructors online), we need a systematic basis for keeping track of the interactions. In computer lingo the bookeeping is accomplished through roles, permissions, and access control levels.

Let's now put the system and method description to apprehend the idea Blackboard claims to have invented. Here it is and it's astonishingly simple:

Bluerelish by Johnnie Utah.

"We, Blackboard, invented a system that allows students to interact online with instructors in a course setting. We also invented a method that tracks for each user which data files they are able to read and write, how the data files are transmitted across the network from and to a user's personal computer via an intermediate server, and finally the means by which course data files are presented and organized for each user."

In a nutshell the paragraph above describes the Idea Blackboard claims to have discovered. I challenge you to read the "44 claims" carefully and see if substantively it contains anything more than what I have describe above.

Once you strip the "44 Claims" from its stylistic dross one can immediately see that Blackboard's "Idea", or innovation as they would claim, is laughably trivial and obvious. The core ideas in the system part of the claim originated with those individuals who developed the idea of network computing and using the Internet for collaboration. If there is one individual who deserves prior art for that Idea it's Tim Berners-Lee. But Berners-Lee himself would claim that hundreds, if not thousands of people worldwide, have contributed to developing and establishing the Idea of network and collaborative computing. The core ideas in the method part of the claim originated with those individuals who developed things like file permissioning and using SQL databases for dynamic web applications. Here we also have to credit thousands of individuals ranging from Bill Joy to Philip Greenspun.

In the next installment I will dissect how such a trivial idea can earn a patent. As background for the next installment I recommend Richard Stallman's Anatomy of a Trivial Patent.