If you don't wish to follow the twists and turns in this new case, you need to look no further than read eLiterate's (Michael Feldstein) elegant summary of the case.
The upshot? As Michael notes, "Once again, we have two companies that are spending their money on
litigation rather than improving their products for their customers,
and once again we have an entire category of educational software that
is effectively frozen out for new entrants (and new innovation) until
such time as the patent is invalidated—if it ever is."
After reading some of the documentation my initial impression is that Blackboard has once again over reached. First, the company seems to prefer litigation as a first option rather than the last option. The paper trail indicates that iParadigms sought to open up a discussion around its intellectual property, particularly in the light of Blackboard's recent acquisition of Sciworth. Recall also that Blackboard sued Desire2Learn not after discussions broke down but immediately following the patent grant by the US Patent Office. There were no discussions with Desire2Learn and now none with iParadigms. In defense of Blackboard, however, iParadigms' attempt at "discussion" began with a formal letter and with a deadline from its attorney to Matthew Small, Blackboard's Chief Legal Officer. In my book that's not how you start a dialogue. It has the signature of a threat and is likely to be received as such.
Second, we can expect Blackboard to interpret its developer agreement with partner companies, such as iParadigms, as providing it with an unlimited and perpetual grant of all the partner company's intellectual property. In light of this new lawsuit Blackboard partners will want to review their agreements carefully. By signing a developer agreement do they understand fully what rights they have given up to Blackboard?
Blackboard advertises its "Building Blocks" program as an "open architecture initiative." "We have provided a comprehensive set of APIs and
specifications that our own clients and independent software vendors
use to build and launch applications on top of the Blackboard platform,
create new functionality for existing Blackboard applications, and
seamlessly integrate third-party applications." But if these APIs are truly "open", why as a developer do I have to give up ANY rights to Blackboard? Calling the Blackboard Building Blocks an "open architecture initiative" appears to be a bunch of crock. Let's see how it works. If you use my APIs, what's mine is mine and what's yours is also mine. Nice deal if you can get away with it. Someone please explain to me what makes Blackboard's APIs "open".
Am I being unfair to Blackboard?
I also have a question for iParadigms. You did sign an agreement ("Blackboard Developer's Network Agreement") with Blackboard on or about April 3, 2007. Paragraph 6.2 reads: "Developer agrees that it will not assert any (emphasis mine) intellectual property rights related to Developer Software against Blackboard or its employees, customers, or affiliates and hereby licenses to Blackboard all (emphasis mine) patent rights related to Developer Software. Such agreement is binding on Developer, its affiliates and successors and assigns of such intellectual property and patent rights.")
What did you think you were signing exactly? I am not a lawyer but the language seems plain. You say in your press release: "It is our understanding -- before and after signing the Blackboard Building Blocks Agreement --- that the Agreement did not cover all of our current and future intellectual property in perpetuity." Fair enough. If the agreement doesn't cover all of your intellectual property in perpetuity what did you think it covered when you signed the agreement? Surely it covered something? And how do you explain "any" and "all" above?
The moral of this story? We come back full circle to Michael Feldstein's point which I cited at the beginning of the post. Education patents are killing competition and innovation. In the end, our students lose.
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