I’ve heard a handful of suggestions from different sources recently about ways in which the Blackboard patent could be circumvented. There are almost always ways to avoid infringing if one tries hard enough. For example, the LMOS probably wouldn’t violate Blackboard’s patent because it wouldn’t have to come configured in the way that Blackboard’s patent suggests out-of-the-box. Users would add applications to it in whatever combination and configuration they choose. Likewise, the much-vaunted PLE probably wouldn’t infringe either.
But it wouldn’t matter. This would not prevent Blackboard’s successful prosecution of their patent infringement suit from chilling innovation. Here’s why:Take the case of the LMOS. True, it probably wouldn’t imfringe on the Blackboard patent that is currently under discussion. But one of their pending patents, #20060026213, is for “Content and portal systems and associated methods.” Oops. We’d probably infringe on that one.
Let’s assume that this second patent is as specious as the first one appears to be. Who is going to fight it in court? Keep in mind that an infringement fight can easily run $1 million to $2 million. I certainly don’t have that kind of cash, nor do many of the small innovators who are working in education and donating their work to the community via Open Source. Or even the majority of the proprietary companies in this space. Are you confident that Desire2Learn has the cash necessary to fight out this infringement case? And what if there’s a second infringement case based on the new patent? Can they afford to fight that one too? And what if somebody else comes out with a patent?
The logical move for a small guy in this space would be to get out of the game. There isn’t enough money to justify the extra cost of doing business brought on by a litigious environment–especially if you’re not in it for the money in the first place. (For a more scholarly, game-theoretic analysis that reaches the same conclusion, see this paper from the Economics Bulletin.)
No. There is no way to do an end-run around this problem. Once an environment of patent litigation is allowed to take hold, innovation will grind to a halt–regardless of who is the immediate target of litigation. The only way to prevent this is to teach companies that patent litigation for educational software–whether the infringement suit has legal merit or not–will not be rewarded in the marketplace. They have to learn that customers will shun them for anti-competitive business practices. Otherwise, we might as well either walk away from the whole field or apply for jobs at Blackboard.
“Software patent escrow”
I wonder if the time has come to broaden the debate before other companies broaden it for us.
Short term, in the US, companies and organisations (even open source ones) are faced with the reality of software patents. Ignoring them is not an option. (And in Europe, we may be faced with it soon, so should plan for the “worst”.)
Medium to longer term, those that do not like software patents will continue their moves to improve not just the legislation but certainly how it operates. But that does not help *now* – including with all the software patents still in transition through the system. (And in Europe, many will want to continue their obbying against it.)
Thus this means that even “nice” companies and organisations will have to not only take out software patents but be prepared to defend them.
Can this be done in a way which does not turn these “nice” companies into “nasty” ones? Is one way for such “nice” companies to make over their software patents to some more general “escrow” organisation, under the condition that they would only be used for “defensive” lawsuits?
Three immediate issues:
a) What kind of general organisation are we talking about? Something like IMS (it does have most of the bigger players) or something seen as even more “neutral” (more like the “e-learning IETF” that has been mentioned)?
b) Would this fall foul of US anti-trust legislation?
c) What is the business justification to these “nice” companies – and in particular could they explain it on Wall Street? Would “we” buy from them in preference? That might turn “nasty” ones into “nice” in a few years.
Paul
It gets worse michael… Just got a comment on my blog from this guy http://my-world.typepad.com/rworld/ take a look at the list of investors for blackboard and tell me if some familiar names crop up.
I’m not sure that I buy this argument. Blackboard is awfully small potatoes for big investors like those to become active investors with.
except that, if they own the patent that you describe above, they would have a great deal of leverage over our dear interwebs. that portal patent is a little scary.
The more I learn about patents, the more I’m coming to believe that Blackboard’s patents are…well…amateurish. They won’t hold up. I don’t think smart money would get behind what they’re doing.
We’ll have some more insight into this after their quarterly conference call with analysts today.
That makes me feel a little better. I will, however, add that other things that aren’t very smart, or well thought out, have been happening recently 🙂
Thanks again for all your hard work Michael. Someday, I’ll get you a beer.
We’re all doing this together. Nevertheless, someday I will let you get me a beer.
Out of principle, of course.
I haven’t seen this anywhere yet, but eCollege has really come out swinging in a press release last night: http://biz.yahoo.com/prnews/060807/lam112.html?.v=43
I hope that will be a celebratory beer.
You make several strong and relevant points in this post. Blackboard’s portal and CMS patents are less interesting to me than their litigation of D2L. At $400 an hour, $1 – $2 mil is burned through with surprising haste. If D2L has $10mil a year in revs, $2mil for litigation defense is too much. And if BBBB is currently valued at 6x sales, why wouldn’t D2L owner capitulate and sell for $50-60mm in cash and stock?
I think the prior art movement and the engagement of the EFF are great, but the strongest message the community can make is to convince Blackboard’s current higher-ed customers that their license $$s are being used to stifle e-learning innovation. If higher-ed people found their marketing costs excessive (you pay for it when you license it), what will they think of their litigation costs?
I worked for a company that went from an innovating company to a patent-litigating company (ACTV: check out some of their early patents on e-learning and push/pull technology). They sued ABC/Walt Disney for their synchronized delivery of interactive content, and many of us saw it as a sign of desperation that companies were willing to go alone and without our help. Blackboard has two clear paths in my mind: a lawsuit threat to get D2L to sell to them (setting up a bipolar world of commercial vs. open source) and then no more litigation or the conversion into a patent litigating company that will continue to divert money from r&d and client support into litigation as they go against increasingly larger and deep-pocketed e-learning players.
I want to endorse Paul’s comments, but fear the horse may have bolted. Blackboard may not be “big” as far as gross revenue or income, but they are strategic. The move might be a stalking horse to test the market or it might be a serious play for control. The amateurishness or otherwise of their patent is not the point. Whether it holds up or not isn’t the point. Tim Stahmer makes the point here in his post “Losing Control” about the Bb move “…creating the potential for a relatively small number of companies, with government blessing, to control the web..”.
I think there is a good argument for some sort of “patent commons” – but caveat: the patent commons players are big (IBM, Sun…). Wonder what Larry Lessig thinks?