The NOSE

East Texas Jury Rules in Behalf of Blackboard in Patent Case

It will take weeks, if not months, to sort out the fallout from the jury ruling yesterday in the Blackboard Inc. v. Desire2learn Inc. case. Although all is not lost, this is a crushing blow to Desire2Learn, one of the few remaining commercial competitors to Blackboard in the higher education LMS market.

The jury found Desire2Learn guilty of patent infringement. Although Blackboard sought $17 million in damages, the jury awarded $3.1 million ($2.5 million for "lost profits" and $630,000 for "royalties").

Blackboard can press the case further by requesting an injunction against further infringement, requiring Desire2Learn to stop selling its product entirely in the US.  The Judge in the case could also award Blackboard additional fees because the case is "exceptional".

It's not clear yet whether Judge Clark made a ruling on Desire2Learn's charge of inequitable conduct. The article in the TheRecord.com, a local Canadian newspaper, implies that the inequitable conduct charge against Blackboard was rejected: "In a separate procedure, Clark rejected Desire2Learn's claim that the patent is unenforceable due to information Blackboard withheld from the U.S. patent office."

Blackboard's Use and Abuse of Standards Bodies

One of the interesting twists in the Blackboard Inc v Desire2Learn Patent Case is the potential abuse by Blackboard of the standards process. Michael Feldstein (eLiterate blog) posed the issue last year. Let's revive it because it's one of the subtexts in the current trial. Furthermore, it raises a disturbing challenge to the integrity of the standards process.

First, let's state the facts. Before Blackboard filed the '138 patent a number of prominent Blackboard people, including some of the purported patent "inventors" worked as consultants to the IMS standards body during the late 1990s. The list includes prominent people such as Michael Chasen and Mathew Pittinsky, both Blackboard co-founders. Some of them were paid consultants to IMS.

On April 29, 1998 IMS published a document entitled "EDUCOM/NLII Instructional Management Systems Specifications Document Version 0.5". Bob Alcorn, Mike Petit, and Udo Schuermann from Blackboard are  listed as contributors to the specification document. (Alcorn is listed as one of the "inventors" of the '138 patent).

I want to emphasize that the IMS Specification came out prior to Blackboard's patent filing, which occurred in 1999.

Now, here are some excerpts from the IMS document:

"In the IMS, as in many groupware products today, users participate in a group in the context of a particular role (emphasis mine). For example, in the Biology 101 group, Mary Clark may be playing the role of a student. In this respect, she will only have access to those items that are granted to students (emphasis mine). In addition, students are an identifiable group of people, so the teacher can send an e-mail to all of the students without having to address them one-by-one. In the Biology Study Group contained in the Biology 101 group, Mary plays the role of Group Leader. As such, she is able to invite new users into the group, add resources to the group, and otherwise manage the group."

The Specification further describes collaboration tools and a user's access to them based on her role:

Discussion lists will use their knowledge of group membership to control what messages are listed. Tools may also grant or deny use privileges based on their ability to ascertain a user's role in the current group context.

The IMS Specification also introduces the concept of a "Role Based Access Control Model" to control user access to various tools and objects.

"The IMS security service uses the Role Based Access Control (RBAC) Model designed by NIST. Access control to IMS objects using the NIST RBAC mechanism is provided by the security environment and by the IMS object."

Now compare the concepts described in the quotes above with a description of Blackboard's "purported" invention. I think it's obvious that the IMS specification is describing the very thing that Blackboard claims to have invented, namely the notion of multiple user roles and differential access to resources based on those roles.

Here it appears, fairly conclusively I believe, that we have not only prior art but also that Blackboard sponged the idea from the very standards body it participated in and was paid to participate in. 

Philip Greenspun on Internet Software Patents

Philip Greenspun, a pioneer of internet web technologies at MIT, has written a new piece on Internet Software Patents.  (Via Feld Thoughts) It's a must read and a good starting point for understanding the Mad Mad Mad World of Internet Software Patents.

Greenspun conjectures that "Perhaps the natural progression of an industry is innovation, consolidation, then litigation." We are certainly seeing this pattern in the Blackboard Inc vs Desire2Learn patent case. As the 2006 Educause Catalyst Award recognized, Course Management Systems emerged in "pockets of innovation among faculty" throughout the world.  Later the CMS began to evolve into products through pioneering work at University of British Columbia and Cornell University. It began to hit mainstream with the emergence of  Prometheus (origins at George Washington University), Desire2Learn (origins in Canada), and then open source implementations with Sakai and Moodle.  Blackboard's acquisition of Prometheus and then WebCT completed the consolidation but also gave Blackboard a de facto monopoly status in the industry. (By most estimates Blackboard enjoys 60-75% of the CMS market share). If Greenspun is correct, then we are squarely in the litigation phase.

1. A Pattern Emerges. "In the Internet software patents that I've looked at in subsequent expert witness assignments, a pattern has emerged.  Someone takes a fairly standard business process and says "I'm the first person ever to have done this with a computer" or "I'm the first person ever to have done this with the Internet" and patents it."
2. A Developer's Perspective. "I was asked "Why didn't you patent this yourself, if you developed it first?"  My reply was "It only took me an hour to build; if I went down to the patent office after every hour of programming, I wouldn't get very much done.""
3. The Patent Examiner. "How come the patent examiner grants patents on stuff that a 12-year-old Visual Basic programmer would probably implement without too much thought?  A patent examiner is only permitted to spend about 12 hours looking at a patent.  If he or she cannot find prior art within those 12 hours, the patent is issued.  Mostly patent examiners look at other patents, but sometimes they search academic journals and popular magazines.  Still, if you had 12 hours to search, including time spent writing correspondence to the applicant, would you be able to find a publication on how to use a file cabinet with hanging folders?"

My own conclusions after reading Greenspun's insightful article?

Who benefits from Internet Software Patents? Trolls, Monopolists, and Lawyers. Who loses with Internet Software Patents? Consumers, Entrepreneurs, Software Engineers, Innovators, and Educators.

The Blackboard Patent and Blackboard's Big Idea

Now that the Blackboard Patent Court Case has begun, let's recap the main issues. Blackboard sued Desire2Learn for patent infringement. What is the patent claim and what is at stake?

First, let's recall that for software patents the invention is an "idea".  In order to be granted a software patent you don't have to write code or produce any tangible expression of your purported "invention." You can stake a claim merely by having an idea and submitting its description to the patent office. Software patents then are fundamentally different from software copyright. Copyright is always attached to an embodiment whereas software patents are entirely ethereal.

Old-style conquistadors used to lay claim to land on behalf of the monarch by looking yonder and chanting some such phrase: "We claim this land in the name of God  and our Savior by killing everyone who already lives here. By this land we mean  all the land as far as the eye can behold and way beyond also for good measure." These days modern-day conquistadors lay claim to "intellectual property" by going to the Patent Office and chanting the modern version of the mantra: "We claim this intellectual property in the name of Innovation and our Shareholders by killing anyone who dares use that Idea for the next twenty years."  In order to qualify as a patent the idea, at least in theory, must be "non obvious" to a skilled practitioner and there must be no "prior art" (i.e. there is no record of someone else beating you to that idea).

Since most of the Blackboard patent claim has already been thrown out by the court, only one idea remains standing.  What then is Blackboard's Big Idea? What idea does Blackboard claim to have originated that so fundamentally revolutionized learning management systems.

Take away all the legal dross of the patent claim and Blackboard's Big Idea is simply this:

Blackboard claims to have originated the idea of a learning management system in which the same user (call him "Joe User") through a single account can have multiple roles. (See diagram below). Thus, Joe User can have the role of a teacher in one class (e.g. Physics 101) and simultaneously the role of a student in another class (e.g. English 343). Each role corresponds to a different permission set. In his role as a teacher in Physics 101, for example, he might have the permission or ability to create tests. But in his role as a student in English 343 he can only take tests, not create them. Millions of dollars have been spent on both sides over the "intellectual property" of this single Idea. It should be noted that nearly all learning management systems implement this basic idea in one form or another and, therefore, can be said to infringe the patent. (Interestingly, Desire2Learn's strategy as I understand it will be to argue that their implementation of roles does not infringe because it does not implement "predefined" roles with "predefined" characteristics.)

Now, the entire problem with this patent is that the idea is obvious. The idea of roles, including multiple roles, has been around for ever in computer science. And since most software engineers don't think about writing down obvious ideas (unless there are management types hovering over their shoulder and goading them on), let alone patenting them, there might not be a paper trail anywhere to establish prior art. What's also obvious is that with enough lawyers and a healthy bank account you can take a simple idea, dress it in unrecognizable legalese, slip it by an underpaid and overworked patent examiner, and then keep it alive in the court system long enough to bleed to death a much poorer opponent. And if you are really persistent you can convince and confuse a jury into upholding an infringement verdict.

Blackboard's Javert-like prosecution of this patent claim is also morally repulsive. The company originated in academia and is part of a culture where ideas are exchanged freely and liberally. It also participated and continues to participate in standards bodies such as IMS. Some of its employees were even paid by the forerunner of Educause and IMS to develop role-based ideas in behalf of the standards community. Blackboard has benefited enormously by these interactions and the flow of ideas with the academic community. How has it chosen to reciprocate? By taking what was community property in the first place and locking it up for its own benefit. It has also managed to game the standards process. Given this behavior why would anyone trust Blackboard as a partner at any level?

In a letter to Blackboard's CEO Michael Chasen the Educause Board noted that the entire community has contributed to the development of the foundational concepts or ideas that underlie the present generation of course management systems:

"Course management systems were developed by the higher education community, which includes academics, organizations, and corporations. Ideas were freely exchanged, prototypes developed, and refinements continue to be made. The new EDUCAUSE Catalyst Award, given to course management systems this year, celebrates that course 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."

If Desire2Learn wins, the edupatent nightmare will be over, at least in the immediate future. A company will think twice before filing an edupatent infringement lawsuit. If Blackboard wins, the educational community will only have begun the good fight.

In Search of Inexpensive, Reliable, and Secure Personal Storage & Backup

If you read this blog then you are in the highest percentile group on the planet that generates personal digital files. (Let's not think about our collective contribution to global warming and what it takes to generate, transform, and store the ever growing quantity of digital information.)

If you are like me, then you have probably been lax about backing up the bits you really care about or later will wish you had cared about. Sure the price of external drives has gone down (a Terabyte of storage can be had these days for under $300) and software such as Time Machine in Leopard makes backups pretty much idiot proof. If you are ahead of the curve, then you probably have an USB-type external drive or are religiously backing up to CDs or DVDs.

But we know these drives will fail. Maybe not today. Maybe not tomorrow. But one day it will fail. And if that's your only copy of a critical file, then what? I have been using .Mac but it's a relatively expensive and Mac-centric option.

Taku Tokuyasu put me on to a solution that works. It's called Jungle Disk and is "powered by Amazon's S3". S3, the backend technology, is in itself an amazing story and worth looking at as a highly scalable storage service for enterprises.

First, Jungle Disk is one of the cheaper solutions out there (15 cents per gigabyte) for personal storage. Second, it's highly reliable and highly available because the data is stored in multiple datacenters around the country. Third, it's easy to use. It can be used in one of two modes, or both. Under the first option the drive appears as a mapped drive in Macintosh, Windows, or Linux. Under the second option  one can use the backup and restore features of the software to automate archiving. Fourth, the file transfer files seem to be relatively fast compared to the alternatives. (I haven't done a systematic evaluation.) There are also some nice security features which I will describe in a later posting. I chose the JungleDisk Plus option, which provides additional features for only $1 more per month.

In short, I think for me the search for inexpensive, reliable, and secure personal storage is settled. At least for now.