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.