Blackboard's New FAQ and Some Comments

Blackboard recently issued another FAQ based on "numerous discussions with those interested in better understanding the Blackboard patent." My comments are in blue below. See also Michael Feldstein's analysis.

Why has Blackboard obtained patents on its technology?
Blackboard has invested well over $100 million in the development of its educational products and relies on intellectual property laws to protect its technology investments.   Patents help to ensure that companies that do not make comparable investments cannot simply misappropriate the technology of others to develop their own products. 

Blackboard has invested significantly in developing its software and rightfully deserves protection of its intellectual property. However, Desire2Learn, eCollege, Angel, Moodle, Sakai and others have also invested in developing their software and likewise deserve protection of their intellectual property. Copyright law protects each party’s investment against misappropriation and is the proper mechanism for adjudicating software intellectual property disputes.

El Capitan   By stelj.

A software patent by contrast is easily abused because it provides monopoly ownership over an idea and all its expressions. Software innovation results from expression in software code. When a company is granted an exclusive right to every expression of an idea, then that company becomes the exclusive arbiter and dictator of all innovations in that space. The overwhelming majority of legitimate software companies have been reluctant to use software patents offensively against competitors because they recognize wisely that in the long run software ideas are the oxygen of innovation and should not become the property of any single individual or company. Copyright and patent law are two very different regimes for assigning and exercising intellectual property rights. Blackboard’s continuing attempt to conflate the two is disturbing and not worthy of a successful and distinguished company which is the market leader in e-learning. With the distinction between copyright and patent in mind, we can make some observations.

First, Blackboard did not invest $100 million in developing the idea underlying its patent claim. It invested money (probably a fraction of the $100 million it claims) in developing software in the form of computer code. The code remains protected by copyright law and has not been “misappropriated” by Desire2Learn or any of Blackboard’s competitors. Second, the basis of Blackboard’s patent idea is neither novel nor non-obvious. It was anticipated, extended, and developed by hundreds of software developers and educators worldwide. Unfortunately, the determination of prior art will not be made by computer scientists or other experts but by a lay jury in a hurried, shotgun trial in East Texas. Blackboard, which enjoys a monopoly of the higher education e-learning market and has a market cap of nearly $800M, has exploited a flawed patent system, resorted to legal chicanery, and then sought to bully a small Canadian competitor into submission. Third, Blackboard’s appropriation of the e-learning idea (as stated in independent claims #1 and #36) constitutes legally sanctioned misappropriation from the Intellectual Commons. Adding insult to injury, Blackboard now wishes to charge economic rent for the very property it appropriated from its own customers.

How do you read a patent?
Patents are comprised of several sections, including the abstract, drawings, written specification, and the claims at the end of the patent. The claims are considered the most important part of the patent because they define the scope of what the patent covers.  The abstract, drawings, and specification are used to help provide the context to understand what is in the claims. 

A common misunderstanding is that the description in the abstract or specification governs what the patent covers.   Focusing on the wrong section of the patent can be misleading and has caused some people to think that the Blackboard patent covers all of e-learning.   To properly understand any patent, you must do a careful phrase-by-phrase reading of the claims.

From the very beginning the blogger community has focused on the claims section for deriving its interpretation of the patent. The primary source of misunderstanding is Blackboard, which still refuses to give guidance to the education community and software developers about the scope and reach of its patent. Every software developer, entrepreneur, or business will now have to hire lawyers instead of focusing its efforts and resources on new product development and innovation. In an environment of legal intimidation customers will be coerced into staying clear of Blackboard’s competitors. 

What is the difference between dependent and independent claims?
Each claim in a patent is either an independent or dependent claim. Independent claims stand alone while dependent claims are used to narrow the scope of the independent claims.  A product that does not infringe on the independent claims by definition does not infringe on the dependent claims.  Because the dependent claims rely on the independent claims, it is important to focus on the independent claims because if they are not infringed then the patent is not infringed.   Blackboard’s patent has 44 claims, two of which are independent (#1 and #36).

Agreed. We have said the same from the very beginning.

Is Blackboard suggesting that all course management systems are covered by the Blackboard patent?
Absolutely not.  Blackboard is not claiming to have invented or to have received a patent on all e-Learning or on all course management systems ever created.  Blackboard didn't invent just any course management system, but the system claimed in the patent, which has achieved great commercial success.   Another common misperception is that Blackboard is claiming to have invented or has claims over a broad range of standard e-learning tools standing alone, like discussion boards and chat rooms, which is also not the case.

No one has suggested that Blackboard’s patent covers all course management systems, since a universal proposition is impossible to verify.  Blackboard’s own words, Blackboards own actions, and a step-by-step reading of the two independent claims, however, establish with a high degree of probability that the “core technology” underlying all major learning management systems in the market infringe Blackboard’s patent. Moreover, in its lawsuit against Desire2Learn Blackboard has charged that D2L’s infringement includes, but is “not limited to all D2L products (emphasis mine) based on the D2L learning system or platform, such as the D2L eLearning Technology Suite, which includes the D2L Learning Environment, Learning Repository and LiveRoom, and all services supporting these D2L products,…” Blackboard’s own words and actions demonstrate that it considers as its property both the core technologies implemented in all major learning management system and the integration of e-learning tools such as learning object repositories and chat.

What functionality is covered by the patent?
The key to understanding what a patent covers is to consider its claims, which is where the inventions covered by the patent are described.  In Blackboard’s patent, claim 1, a system claim, is independent.  Claim 36, a method claim, is also independent.  The other claims are dependent claims because they depend on either claim 1 or claim 36. They cannot be infringed if claim 1 and 36 are not infringed. 

In order for a claim (whether independent or dependent) to be infringed, each and every element of the claim in question (or an equivalent) must be present in a product.

For example, claim 1 in the Blackboard patent describes a course based-system with user computers where each user is “capable of having predefined characteristics indicative of multiple predetermined roles in the system.”  Consequently, a system must provide for “multiple predetermined roles” for each user according to the claim and, likewise, every other element (or its equivalent) of claim 1 must be embodied in the system in question for claim 1 to be infringed.  This detailed element-by-element analysis is necessary to evaluate the scope of the patent.  Be wary of any analysis of this or any other patent which does not involve an element-by-element discussion of the claims as each element is a limitation on the scope of a patent.

See my “element-by-element” translation of claims #1 and #36. See also the complete rendering of all 44 claims by Michael Feldstein.

Is every e-learning application covered by the patent?
No. The patent covers only the specific systems and methods claimed in the patent (and their equivalents).  As described above, the patent covers only those applications that contain every element (or the equivalent of the element) in the claims in the patent.

A Red Herring. No one claims that the patent covers every e-learning application. But the patent description does cover potentially every major learning management system now available, including Sakai, Moodle, eCollege, and Angel. Does Blackboard wish to say publically that it ain't so?

Is the patent valid?
Yes.  A patent issued by the U.S. Patent and Trademark Office is presumed valid by the courts.   Just as not every course management system ever created would infringe the patent, not just any course management system would invalidate the patent.  It is not enough to point to the fact that many course management systems existed prior to the filing date of Blackboard’s patent in order to invalidate the patent.  To be invalidating prior art, it must describe each and every element of each and every claim of the Blackboard patent. 

The patent is currently valid but it will be challenged and ultimately overturned. Unfortunately, in the long run everyone will lose.

How can I gain a better understanding about the Blackboard patent or other patents?
The inherent complexity of patent law is no doubt a leading cause of confusion about the Blackboard patent.  A few organizations have recently announced that they will be consulting with patent advisors which we believe is a good development and certainly encourage others to consult with their professional advisors.  We welcome the dialogue about the implications of intellectual property rights on the e-learning industry generally.  We believe that an important first step is for all participants to have a common understanding of the Blackboard patent and patent law in general.

Translation: "We want you to remain fearful and confused. We will also continue to sow the seeds of doubt and uncertainty by conflating distinctions such as the one between copyright and patent. We urge you to turn to lawyers because we know we can afford them and you can’t."

Blackboard should immediately drop all charges against Desire2Learn and focus on building better software for its customers. Blackboard can regain the trust of the education and business communities by engaging in fair competition and working cooperatively with software developers worldwide to advance the state of e-learning.