First Mainstream Press Article about the Blackboard Patent

The Kitchener Record, Desire2Learn’s hometown newspaper, is running a story on the patent infringement suit. With luck, more mainstream media outlets will begin reporting on it soon.

I’d like to address one comment in the article by Blackboard’s General Counsel, Matthew Small. He said,

This is not about reducing competition, it’s not about hindering innovation, and it is something we think is in line with our duty to our clients to protect their investment in us as well as to protect the investment we’ve made in our technology.

There are a number of ways in which this statement is off-base.Let’s start with the competition issue. Blackboard doesn’t get to decide what the lawsuit is “about.” The market decides that via purchasing decisions and stock prices. And there is no question that the suit, if successful, will reduce competition. As I noted in my last post, virtually every mainstream Learning Management System in production today has most or all of the features listed in the patent claims and therefore may infringe. Regardless of whatever Blackboard may say about their intentions to sue or not to sue other companies, Open Source projects, or–more to the point–the universities that use other products, any sane and responsible university administrator will think very carefully before agreeing to use software that may increase their institution’s legal liability exposure. Simply put, some institutions may choose Blackboard if they believe choosing anything else puts them at even a theoretical risk of a lawsuit. I am quite confident that Matthew Small knows this.

There is also no question that it will have a chilling effect on innovation. On the proprietary side, as Jim Farmer documented a while back, it’s already difficult to make a profit in this sector because the cost of doing business is so high. Even Blackboard struggles with it. If you add to that the expense of a legal patent war, then many companies may make the rational decision that it just isn’t sufficiently profitable to sell LMS’s to educational institutions anymore. And the Open Source side is even worse. If vendors are deterred by the legal liability exposure, the universities who contribute to Open Source development have even less incentive to fight the expensive legal battle. There is absolutely no question that both this particular patent and the precedent it sets will have a substantial chilling effect on innovation.

And finally, it is not clear to me how this patent and lawsuit protects Blackboard’s customers. The “innovation” they patented is seven years old now. Seven years in technology is an enormous amount of time. And in that intervening seven years, Blackboard and its customers have done just fine without any patent protection. Even if you believe that their patent represents a genuine innovation (which I don’t), the truth is that Blackboard is still the market leader despite the fact that every product on the market has “copied” their “innovation”. I see no evidence of harm to Blackboard, and I certainly see no evidence of harm to the customers. To the contrary, the marketplace has benefited from the free exchange of ideas that this lawsuit will stifle.

tags: blackboard patent, desire2learn, lms