e-Literate

Present is Prologue

Author: Michael Feldstein

  • Patents and IMS Common Cartridge

    A while back, IMS CEO Rob Abel was kind enough to comment on my post regarding the potential impact of patents on educational technology standards. As part of his summary at the end of the comment, he wrote,

    It’s difficult for Blackboard or any other vendor to “game” the standards process in IMS due to our IP policies. So, in fact the standards organizations are a great way to bring issues like this out so they can be known – and, in the case of standards, potentially go in a different direction if one organization’s IP is encumbering. The standards become the known ground that vendors must share without claims.

    While I appreciate Mr. Abel’s effort in sharing his thoughts, and while I am glad to hear his optimism, I’m afraid that recent history with technology patents shows that it is not so easy for standards bodies to protect themselves from abuse by aggressive patent holders. (more…)

  • (Almost) Back in the Saddle Again

    Well, after a week of being crushed in moving boxes, I’ve managed to dig out enough to find my computer. Lucky for me Al Essa posted a week-in-review summary of the Blackboard EduPatentGate drama that helped me get back up to speed. Al has been doing a fantastic job of attacking the problem from a number of different angles. If you care about this issue and haven’t yet subscribed to his feed, you really should.

    I’m working on some follow-up regarding the impact of patents on standards development and have should that plus at least a few other posts up this week, with the goal of getting back to normal by the beginning of next week. So stay tuned. In the meantime, you might enjoy reading a piece on EduPatentGate from Justin Pope at the Associated Press. Here it is on ABC News’ web site. Business Week, the Washington Post, and USAToday have also picked it up so far.

  • Going Dark for a Little While

    I am moving this week. The moving truck comes on Monday, and I have many a box to pack between now and then (and to unpack afterward). As a result, I will probably not post much (if at all) until late next week.

    Sorry.

  • Desire2Learn's Prior Art Needs

    A source close to Desire2Learn sent me the following information regarding the information they need to gather for the patent suit:

    While anecdotal evidence, e-mails, links and electronic documents are all appreciated and helpful, the very best things are the lowest tech: hard copy users guides from June 1998 and earlier would be useful, especially if they have a big, fat copyright date on the front. Any kind of documentation, release notes, even brochures would be helpful. They can snail mail them to Prior Art, c/o Desire2Learn, 72 Victoria Street South, Suite 401, Kitchener, Ontario N2G 4Y9, Canada.

  • Eben Moglen Weighs in on Blackboard

    Here’s a late-breaking item from the Sakai Foundation:

    In the wake of recent efforts to limit the free and open sharing of innovation for online learning, the Sakai Foundation has retained the Software Freedom Law Center (SFLC), an organization directed by Eben Moglen and dedicated to providing advice and legal services to protect and advance free and open source software, to evaluate the recent Blackboard patent, its impact on the educational community, and to advise on legal matters regarding the patent….Sakai has engaged the SFLC to assess and respond to the patent, but the Foundation believes that the core issue is much broader than the current technology in question. Sakai is working with the SFLC and others of like mind to develop a long term common defense effort, and encourages everyone to contribute to the SFLC to support its efforts now and in the future to aggressively challenge bad patents in the area of educational and research software.

    For those of you who don’t know, Eben Moglen is a pretty big deal. In addition to chairing the Software Freedom Law Center, he has affiliations with the Free Software Foundation and the Electronic Frontier Foundation.

  • eCollege Has Patented the Gradebook

    That’s right. In 2004, eCollege was granted a patent that, as far as I can tell, is for

    • A gradebook
    • An online syllabus
    • A private student journal

    Now, before you panic, ask yourself why eCollege has not sued anyone in the two years since they acquired the patent. The truth is that there are all kinds of reasons to file for a patent that you may never intend to litigate. In fact, one reason that many technology companies today are almost required to file for patents whenever they can is to build a defense against exactly the kind of action that Blackboard is taking against Desire2Learn. (more…)

  • BECTA to Europe: Don't Panic About the Blackboard Patent (Yet)

    I meant to post this yesterday but the day got away from me. A reader asked me to call your attention to this announcement from the British Educational Communications and Technology Agency (BECTA):

    1)Patents are valid only in the jurisdictions in which they are granted. The US patent granted to BBI will not have any direct/immediate impact on the Becta procurement process. There is currently no restriction on the supply of products within the United Kingdom which fall within the scope of the US patent.

    2)BBI has made four European patent applications. The European Patent Office (EPO) procedure is complex and lengthy. The process can take at least 5 years. The process includes an international search for “prior art”. This has revealed two documents (Lee and Cook) on the basis of which the international examination report considers that the BBI claims could not be considered novel.

    3)If the BBI applications are granted at the EPO, European Patents (UK) will be granted which will have the same effect as regular UK patents. BBI could seek to enforce its patents against potential infringers of the patents who are providing e-learning facilities in the UK. The patents will only be enforceable if they are valid. Any infringer sued by BBI would be entitled to counterclaim to invalidate the patents. The UK courts will analyse the validity of the BBI patents from first principles � the patents are afforded no ‘presumption of validity’ merely because they have survived examination in the EPO.

    In short, there is no patent in Europe yet, it will take a long time for there to be a patent in Europe, and in the event that there is a patent in Europe, the EU’s patent law is much friendlier to challenging patents than current U.S. law. BECTA concludes by saying,

    Becta considers that the Framework Agreement should proceed as planned. Suppliers should seek their own legal advice in this issue.