On Edupatents, Corporate Branding, and Putting Words in People's Mouths

There’s a write-up of the edupatent flap in eSchool News. It provides a reasonably good summary of the basic history, as far as these types of stories tend to go, and also gives a high-level account of the current state of the legal battle. (Short version: It’s dragging on.) All in all, it’s a useful summary of what we already know. But it does include one statement by Blackboard’s General Counsel Matthew Small that’s a bit of a jaw dropper.

Now, I’ve gotten to know Matt a bit during the course of this whole saga, and he strikes me as a reasonably bright guy. Which is why I can’t understand why he continues to invite trouble for himself and his company by making public statements like this one:

“I haven’t heard any of those complaints since we announced our patent pledge,” Small said, and he suggested that the pending litigation was now widely regarded as little more than “an isolated suit between the two of us.”

The overall online-learning community “really doesn’t care” what happens between two companies, Small said.

That’s just a completely and unequivocally false characterization of the feelings of the ed tech community as far as I know (though it may be an honest account of how Matt sees it).  I haven’t met anyone outside of Blackboard who thinks that their pledge has put the edupatent issue to rest. And believe me, I’ve asked around quite a bit. There seem to be two basic positions regarding the pledge. Either people see it as a step in the right direction–perhaps even innovative–but not something that negates the very substantial damage to the community that is being caused by the prosecution of the lawsuit itself, or they see it as a cynical and empty ploy on the part of Blackboard to shut the critics up. (I happen to belong to the former camp, by the way.)

I’ll say it again–I don’t know anybody outside of Blackboard who sees the lawsuit as “an isolated suit.” To the contrary, it has become a real, serious, and lasting stain on the Blackboard brand. My perception is that the reason the community has grown quiet is not because everybody is suddenly thinks the edupatent issue is over, but because there is nothing substantially new to say. The arguments have been made and are now fairly well known within the educational community. Individuals and institutions have the information that they need to act in accordance with whatever they deem to be in the interests of their universities and the larger educational community. The current stage of this battle gets fought in the courtroom, the USPTO, and the university purchasing committees. Those of us who have been acting as individuals to inform the community about the issues have relatively little to contribute at this stage. But that doesn’t mean that we’ve lost interest, changed our minds, or gone away.
Blackboard has an opportunity to heal the self-inflicted wound to their brand. Certainly, dropping the lawsuit would do a lot to help the healing process. But they are fooling themselves if they think that all is well now. And at the very least, they should learn to avoid the temptation to pick at the scabs.