Patently-O has a piece by Professor Joshua Sarnoff on the ruling. Sarnoff has quite a resume, apparently:
Professor Joshua Sarnoff, Assistant Director of the Glushko-Samuelson Intellectual Property Law Clinic and a Practitioner-in-Residence at the Washington College of Law, American University. Professor Sarnoff filed an amicus brief in support of Petitioner KSR.
Professor Sarnoff’s analysis of the ruling, once again, has some bearing on edupatents.
Patently-O has up a PDF of the KSR v Teleflex ruling (which, by the way, was unanimous). Basically, the court says that, while the original precedents provide adequate guidance for obviousness, the Federal Circuit has interpreted that guidance too narrowly, arguing that “Rigid preventative rules that deny recourse to common sense are neither necessary under, nor consistent with, this Courts case law.”
Probably the passage in the opinion that resonates the most with the kinds of issues that come up in Bb v. D2L and are likely to come up in any similar edupatent disputes is the following:
When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.
In other words, if a problem is fairly well known in the market, and if there are a fairly small number of fairly well-known methods for solving similar problems, you can’t get a patent just by being the first to apply the known solution to the known problem.
This is huge. Today the U.S. Supreme Court ruled in the case of KSR v. Teleflex, where the central issue was the meaning of “obviousness.” The reason that the word is important in patent law is because an innovation that is deemed “obvious” is not patentable. For example, Teleflex had combined two existing devices for truck gas petals and claimed that the combination was a new idea. KSR claimed that, even though nobody had combined the two devices in production at the time of Teleflex’s patent filing, it was fairly clear to “a practitioner with ordinary skill in the art” (i.e., Joe Truck Designer) that the two could be combined.
This has direct bearing on Blackboard v. Desire2Learn. Before this ruling, the standard for proving obviousness was very high. As a result, finding, say, one pre-existing LMS that implemented half of the claims in Bb’s patent and another one that implemented the other half probably wouldn’t be enough. Unless you could find one system that implemented every one of the 44 claims, the case for invalidating the patent would be very difficult to make. This ruling should make D2L’s case easier.
Just how much easier remains to be seen. I haven’t found any details on the ruling yet, so I don’t know what new guidance the court set.
In related news, the court also ruled in favor of patent reform in Microsoft v. Alcatel-Lucent today. While this ruling is unlikely to have a direct impact on Bb v. D2L or on edupatents in general, we won’t know for sure until we see the written opinions. We should know more about both cases in the next couple of days.
I’ve been so busy lately that I haven’t even had time to post notice that I have a new article published in ALT-N. I’ve been having conversations on and off with Rob Abel about ways to ensure that educational technology standards (and, of course, the educational technologies themselves) are more effectively informed by our developing understanding of best practices in online teaching and learning. More recently, I’ve been having somewhat similar conversations with Seb Schmoller, except in the context of ALT rather than IMS. Coincidentally, Seb sent me an issue of ALT-J that talks about the use of pattern languages to make sure that accepted best practices in online learning are more effectively informed by various cognitive and learning theories, and vice versa. (Longtime readers know that I have a fondness for notion of pattern languages and have even created a category on my blog about applying the concept to education.) As I read the article, it occurred to me that use cases serve a similar bridging function between software users/practitioners and software developers. If you could form a bridge between a pattern language of educational best practices and a body of use cases that describe how software could support those best practices, then you might really have something. Hence, the article.
As usual, Stephen Downes as a few nits to pick.
To begin with, he complains about the use of the word “praxis,” which he describes as “just the word ‘practice’ with an attitude.” It’s true that “praxis” is often incorrectly understood as and used interchangeably with “practice,” which is why I usually avoid using it. I chose to use it this time for two reasons. First, the authors of the article on pattern languages used it, so if I chose not to use it I would be creating an inconsistency in language which I would have to take significant word count to explain. More importantly, though, they had used it correctly. Praxis, properly understood, refers to the set of best practices that is empirically derived from practice (as opposed to being the practice itself). It is a kind of experiential-derived theory and is meant to be contrasted to more classical scientific theory. So principles of physics are theory while principles of engineering are (generally) praxis. Or, in this context, principles of education derived from cognitive psychology are theory while principles of education derived from teaching experience are praxis.
His other complaint is…well…I’m not sure what it is. He writes,
I’m uneasy with this – it’s hard to articulate why, exactly – but I don’t think software should be designed to ‘do things’ so much as it should be designed to ‘create capacity’. I know that’s not a very clear distinction. But it’s like the difference between ‘process’ and ‘creation’.
He’s right about one thing. It’s not a very clear distinction. In fact, I have no idea what he’s talking about. The only thing I can think of regarding “creating capacity” is Don Norman’s concept of affordances. But affordances are entirely consistent with use cases. In fact, use cases are an excellent (and commonly used) way to ensure that your software is designed to “create capacity” in the way that users want.
So I guess I’m still in the dark. If Stephen (or anyone else) wants to couch his criticism in concrete terms that are consistent with the…um…praxis of user-centered software design, then I’ll be happy to respond further.
My good friend Ken Udas has asked me to pass along the following:
I would like to point you to a project that I am helping to coordinate on “The Impact of Open Source Software on Education,” in which a group of colleagues are posting perspectives on OSS in education. The group will make brief posts of their personal perspectives on OSS using Terra Incognita (the Penn State World Campus Blog). Most of the authors have a strong distance, open, and eLearning background. After each posting there will be a period of time during which comments, feedback, and dialog will occur. Eventually the posting, comments/discussion, and a brief summary will be formatted and made available as open educational resources on WikiEducator. During the days following each posting on Terra Incognita, the author will be available to respond to feedback and engage in a group dialogue with you.
I think that this activity could provide an excellent introduction to OSS in Education for practitioners and is also a way to get a feel for some perspectives from around the globe. We have contributing authors form the US, Australia, Canada, New Zealand, Kenya, and South Africa currently scheduled.
If you are interested in learning more about the “The Impact of Open Source Software on Education” series, you can check out the project site at on WikiEducator.
Or if you just want to check out the first posting it will be made on Terra Incognita on March 12th. An interview with Ruth Sabean, assistant vice provost for educational technology in UCLA’s College of Letters and Science, will kick off the series on March 12. Ruth ran the evaluation process at UCLA that resulted in the selection of the open source application Moodle.
Parts one and two of the interview with Ruth Sabean are up now and are very interesting reads.
You can find the documentation here. The USPTO found 13 of Desire2Learn’s 14 claims to raise substantial new questions of patentability. However, the government did not a preliminary finding, as is usual with an Inter Partes challenge, because they are considering whether this challenge should be merged with the Ex Parte challenge filed by the SFLC on behalf of the Sakai, Moodle, and ATutor communities. I assume that the finding will be issued once this decision has been made.
If anybody has any further analysis of the document, please remember to tag it “edupatents” so that it will be picked up by the EduPatent Alerts system.
Here is a press release by Thomson Learning about their decision to become a Sakai commercial affiliate. It has all the usual statements about working with the community, supporting open standards, and so on. But what caught my attention, down in the sixth paragraph of a six-paragraph press release, was the following statement by Thomson Learning’s Chief Technology Officer Ray Lowry:
In addition, Thomson Learning is glad to see one of its key business partners, Blackboard, Inc., making a move in the right direction to engage the open source community.
This has to be a reference to Blackboard’s recent patent pledge. But what does it mean? Is it a quiet endorsement? A sly dig? A little of both? If I’m not mistaken, Thomson and Blackboard do indeed have a very close business relationship. I doubt they would make this statement without careful consideration first. I find the company’s decision to comment on the edupatent issue in an unrelated press release to be very interesting.
