Blackboard's Collectivization of eLearning: Is Your System at Risk?

Mao once said, "To know the taste of a pear, you must change the pear by eating it yourself." Blackboard has taken the Chairman's dictum to heart and unabashedly applied it to e-learning: "To transform e-learning, you must own it all for yourself."

As we have been saying all along (1), (2) and Blackboard now admits, the essence of a patent and what it governs is found in the statement of claims, particularly the independent claims.

Is your software at risk? Does Blackboard own your software or any of its parts? The starting point in being able to answer these questions is to understand that Blackboard Inc. now owns an idea and by extension every expression of that idea. In a nutshell that's the difference between a patent and a copyright for software. The US Patent and Trademark Office granted Blackboard ownership over a particular idea and ALL its expressions. That idea (let's call it the Big Idea) covers the core technology underlying just about any e-learning system we might care to imagine.

Below is a literal English language translation of the two independent claims (claims 1 and 36) in Blackboard's patent. (Don't trust my translation. Examine the original for yourself.)  If the next two paragraphs come near to describing your system, then start preparing for collectivization by the Blackboard Party.

THE BLACKBOARD PARTY'S BIG IDEA We (Blackboard Inc.) invented (for the first time) the novel and unobvious Idea of creating a computer program for faculty and students who wish to share course files over the Internet. Our computer program will simultaneously accommodate several faculty members, several students, several courses, and several course files. All course files will be stored on a central server and be accessible by students and faculty with their personal computers. The course files will travel to and from the server over a network. Our computer program will keep track of who is authorized to create, read, and modify each file on the server. The authorization will depend upon the particular course being taught, the faculty member who is teaching it, and the students who are enrolled in the course. In particular, our computer program will be able to perform the following steps: a) ensure each user is able to access and manipulate the appropriate course file depending on their authorization; b) designate which courses will be in the system and, accordingly, associate the set of files that go together with that course; allow the authorized user to transmit those files to the server for storage;  and allow the authorized users to access and manipulate those files. c) if the user is a student, ensure that the student is able to access the student files; d) if the user is not a student, ensure that they are also able to access their authorized files."

Someone who knows the basics of how computers work knows that this is a trivial and obvious idea. (Think about how you would implement the Big Idea in a non computer context and you will quickly realize that the trick is to have a record keeping system for determining who should have access to which paper files and some way of locking those files. In the computer world both can be achieved with file system permissions or databases. And both have been around forever.)

It's worth noting that Blackboard's Big Idea, which they now own for 20 years in the US, Australia, New Zealand and Singapore, is technology, application, and architecture neutral. It's technology neutral in the sense that any system, whether it's implemented in Java, C#, Perl PHP, MySQL, Oracle, SQL Server, is owned by Blackboard. It doesn't matter which technology is used because the patent description is abstracted from the implementation details. It's application neutral in the sense that it covers, for example, a blog or wiki application if it meets the characteristics contained in the Big Idea. It's architecture neutral in the sense that it spans web-based systems and client-server systems. (A P2P application is probably not covered. But someone probably has a patent pending on that.) If your data model avoids course-specific language because it's based on a more generalized groupware or community paradigm (e.g. elgg, .LRN), you are probably still not off the hook because the patent claim is a functional description and applies as long it's used in a course setting and students and faculty are able to achieve what's described in the Big Idea.

History inevitably marches on towards e-learning collectivization. Be sure to join the Blackboard Party, Comrades!

Disclaimer: I am not an attorney and nothing on this blog should be interpreted as offering legal advice or advice of any sort.