The NOSE

Desire2Learn's Response to BlackBoard, Part II

The essence of Blackboard's patent is the claim that they came up with the core idea underlying enterprise learning management systems. The core idea consists of two parts:

• first, a user can access resources from multiple courses in a unified way
• second, a user can have multiple roles across courses

According to Matthew Small (Blackboard counsel), before Blackboard "each course was an island onto itself...Each course required a different logon, different central space, new calendar, new inbox...you couldn't move from one to another." Blackboard was "struggling" with how to come out with "enterprise software" and hit upon the idea of a "user centric" system wherein a user would logon once, "find their central space, could see all their courses and the role they played in each of those courses and could move from course to course." Moreover, as a user moved from one course to another, their role could change while maintaining their central space. For example, a student in one class could be an instructor in another class. (Matthew Small quotes are based on notes from Blackboard Patent Q&A Webinar, September 18th)

Recall that in order to receive a patent you merely have to describe the idea of how such a system might work. It's not necessary to have it embodied (i.e. write the program) in any particular system.

In its response D2L claims that the core idea was described by a technical team working on behalf of Educom/NLII in April 1998, well before Blackboard's patent filing. Moreover, Blackboard participated in the IMS team and, therefore, was fully aware of the prior art.

The following are excerpts from the Educom/NLII document.  They establish decisively that, if anything, Blackboard ripped off the idea from the specifications work of the IMS technical team. Desire2Learn is fully justified in asserting that Blackboard's failure to disclose the IMS prior art was "intentional and done with deceptive intent".

EDUCOM/NLLI Instructional Management Systems Project Draft 0.5 April 29, 1998

"We have defined these stakeholders in terms of the different roles involved in the process of learning. These roles are often performed by the same stakeholder: someone who is a teacher may also play the role of a learner and vice versa: similarly, a content provider may also engage in activities associated with the role of a teacher."

"An IMS Profile for a user may include both learner-specific and author-specific information since an individual can be both a teacher in one context and a learner in another."

"We want programs that provide the user experience to have the ability to present groups and content from multiple IMS locations and vendors in one consistent view." (Note: the work of the IMS team describes an even more general scenario than the Blackboard patent since what is envisioned is the possibility of course materials residing in different systems yet presented to a user in a unified and consistent manner.)

"Resources and utilities dynamically configure their presentation to the user based in part on group data."

The blokes on the IMS team thought they would "enable an open architecture for learning." Little did they know that Blackboard behind the scenes was moving to lock it up and then later would try to extort royalties from competitors.

Blackboard's continuing public claim that it "invented" some of the "core technology" underlying enterprise learning management systems is a mockery. And then to file a lawsuit against a much smaller competitor is outrageous.

Blackboard's Patent Claim in a Nutshell

Diagram 1 (Pre-Blackboard: Course Islands) represents the state of affairs, according to Blackboard, prior to their purported invention. Course Management Systems consisted of a "bunch of separate web sites" for each class. You had to have a "different login, different central space, new calendar, new inbox, etc" for every course.

Diagram 2 (Blackboard's Invention) represents Blackboard's purported invention. Blackboard supposedly came up with the idea whereby users could logon to their central space, could see all their courses from one central space, and move from one course to another behind a single logon. A user can also have multiple roles. In other words, the same user could be a student in one course and an instructor in a different course.

Recall that a patent provides ownership for an Idea. In this instance Blackboard claims that it originated the idea of a course management system that provides unified access ("user centric") to course material across multiple courses and also provisions for multiple roles across multiple courses. If your system implements this basic idea (D2L certainly does), then more than likely you are infringing on Blackboard's patent.

Desire2Learn's Response to Blackboard

The essence of Desire2Learn's response  is contained in the following two sentences of the legal brief filed on 9/14/2006:

12. On information and belief, Blackboard's failure to disclose the Undisclosed e-Learning Products to the Patent Office was intentional and done with deceptive intent. 31. On information and belief, Blackboard's failure to disclose the IMS Specification to the Patent Office was intentional and done with deceptive intent.

by TheNose.

Let's translate. Blackboard is required by statute to disclose all relevant prior art information in its possession. D2L claims that two instances of prior art are particularly applicable to the case and, more strongly, were known by Blackboard at the time of the patent filing.

According to D2L, the first set of prior art materials was available through the companies acquired by Blackboard, including CourseInfo (1998), MadDuck Technologies (2000), AT&T Campuswide Access Solutions (2000), CEI SpecialTeams (2000), Prometheus (2002), SA Cash division of Student Advantage (2003), and WebCT (2006). Since the D2L brief does not mention specifics we have to assume the details will be revealed during the discovery phase of the trial.

According to D2L, the second set of prior art materials was available to Blackboard through its participation in the IMS project of EDUCOM's National Learning Infrastructure Initiative. (Educom was one of the predecessor organizations to Educause). This is a damning indictment and goes for Blackboard's jugular. If true, it would mean that the core idea Blackboard claims to have invented was in fact lifted lock, stock and barrel from the work of the IMS Project Technical Team. To add insult to injury, it seems that Blackboard swiped the idea while some of them were paid consultants on the project. The D2L legal team provides specifics for this charge and in my next post I will compare Blackboard's patent idea, as embodied in its independent claims, against the ideas in the Educom/NLII IMS Document published in April 29, 1998.

Note: In order to invalidate a patent one has to show only that prior art existed. D2L is aiming to establish something stronger, namely that Blackboard had knowledge of the prior art and, therefore, concealed it from the patent examiners. Moreover, Blackboard lifted the idea directly from the work of the educational community as represented by Educom, which later morphed into Educause.

 

Is Blackboard Inc. Doomed?: Part I

The German philosopher G.W.F. Hegel once remarked, "The Owl of Minerva takes its flight only at dusk." Let's adapt Hegel and apply it to the Blackboard case: "Wisdom comes, but often too late."

In a talk given at Google, Paul Graham (talented programmer, enterpreneur, and advisor to software firms) has an interesting take on software patents ("Are Software Patents Evil?"):

dogbooties  by Johnnie Utah.

"When you read of big companies filing patent suits against smaller ones, it's usually a big company on the way down, grasping at straws.  For example, Unisys's attempts to enforce their patent on LZW compression.  When you see a big company threatening patent suits, sell.  (emphasis mine) When a company starts fighting over IP, it's a sign they've lost the real battle, for users. A company that sues competitors for patent infringement is like a defender who has been beaten so thoroughly that he turns to plead with the referee.  You don't do that if you can still reach the ball, even if you genuinely believe you've been fouled.  So a company threatening patent suits is a company in trouble."

Paul Graham is no dummy. Here is an interesting statistic as you ponder Graham's comments. In the last sixth months there has been a single insider purchase of Blackboard stock and that was for a mere 2,500 shares. By contrast, there have been twenty-three sell transactions by Blackboard officers for a combined 261,113 shares. Does that seem to confirm Graham's point?  (If you are interested, compare the insider transaction record for eCollege. You will notice that not only are the principals not cashing in in gobs but there seem to be as many buy transactions as there are sell.)

Paul Graham makes another point which Blackboard Inc. might also consider as it alienates its customer base. Even if Blackboard were to "win", it could be a pyrrhic victory because it could face the prospect of an internal rebellion.

"Good hackers care a lot about matters of principle, and they are highly mobile. If a company starts misbehaving, smart people won't work there. For some reason this seems to be more true in software than other businesses.  I don't think it's because hackers have intrinsically higher principles so much as that their skills are easily transferrable.  Perhaps we can split the difference and say that mobility gives hackers the luxury of being principled."

I have met a number of great people at Blackboard. I am sure some of them, not just hackers, are shaking their heads. Can Blackboard Inc. afford to lose its most valuable asset? Its talented people?

Will Blackboard get wise, or is it already too late?

Via Flaunt It.

Desire2Learn Files Response to Blackboard Lawsuit

Desire2Learn response to the Blackboard lawsuit is now available at the immagic library. It's vigorous and hard-hitting. A damn good counter-offensive.

Stay tuned for commentary from Feldstein, myself, and others.