Anatomy of a Bogus Patent, Part I

This is the first of a series of posts called "Anatomy of a Bogus Patent". My intent is to dissect Blackboard's bogus patent and trace its repercussions for higher education and the software community. If I misstate a fact or seem to reach an unwarranted conclusion, please let me know. Each post will be in an FAQ format.

Q. The Blackboard patent covers only traditional Learning Management Systems (LMS) and since LMSs are increasingly "irrelevant", why should we care if LMS vendors cannibalize each other?  Won't this force innovation by getting the educational software community to focus on developing mashups and Web 2.0 technologies, thus bypassing the obsolete LMS?  A. It's mistaken to think that the Blackboard patent only covers Learning Management Systems. If one reads the patent claim carefully, it's clear that the reach is sweeping and covers any "network based system" which is used to deliver online educational resources using roles. Thus, Web 2.0 technologies such as blogs, wikis, and simulations are not immune from the patent if they incorporate roles as described in the method claims.

Discussion: To illustrate the point let's consider some potential and actual designs which Blackboard could claim infringes its patent.

a) Facebook. Let's suppose that you belong to two different educational groups in Facebook. In one group you are a member only, mimicking the student role. In the other group you are an officer, mimicking the faculty role. Accordingly, you have one set of permissions for accessing course files as a student and another set of permissions for accessing course files as an instructor. (Note: course files can be any item ranging from a photograph to a forum posting.) The Facebook example is not hypothetical. I belong to two educational groups. In one I am the instructor and in the other I am a student.  Because in this example the same user can have "multiple predetermined roles" and differential access to files based on those roles, Blackboard can claim patent infringement against Facebook. Of course, Blackboard is unlikely to challenge a heavy hitter like Facebook, preferring to bully a much smaller competitor. The point here is that Blackboard can claim infringement against Facebook based on the broad scope of the patent.

b) Unix or Linux File System. Install and configure a very basic Unix or Linux server. Next, create a set of user accounts for each individual who will access the server. Assume "Jane Smiley" is a user and has userid: jsmiley. Next, create two directories and set up some groups. For the first directory jsmiley has read, write, and execute privileges. For the second directory jsmiley has only read and execute privileges. In this simple case students are only able to "read" or access files whereas an instructor can also upload or "write" files on the server. (What have I described doesn't even assume a web server for exposing the files, although we can do so if we choose to.) Blackboard can also claim that even this very rudimentary and simple "network based system" infringes their patent. I cite this example for two reasons. First, Blackboard's patent is so broad that it covers even a very simple file sharing system that implements access control lists based on unix file system permissions. Second, the underlying idea of Blackboard's patent--an idea which BB claims took them "millions of dollars" to research and develop -- is a trivially derivative notion in computer science. Any 12 year old who knows Unix or Linux knows about access control lists and derivatively how to use them to configure "multiple predetermined roles."

3. Simulation and Web 2.0 A company builds a multi-purpose Physics Simulation that also incorporates Blogs, Wikis, and RSS feeds to foster teamwork and group projects. A graduate teaching assistant (TA) has an account in the system. The teaching assistant has the ability to modify aspects of the simulation for Electricity & Magnetism, including setting up a course Wiki. The same TA, however, does not have the ability to modify any aspect for General Relativity since she is a student for that course. Blackboard can claim that this Physics simulation system infringes their patent because it's a "network based system" which uses as a method "multiple predetermined roles". 

In summary, any system that differentiates access to educational resources based on "multiple predetermined roles" can now be claimed by Blackboard to infringe its patent. There is a simple reason why Blackboard went after Desire2Learn. As recent court documents show Desire2Learn was winning too many head to head deals. If you can't beat them fairly, sue them.