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.