A company called Sampo IP, which is a wholly owned subsidiary of patent troll Marathon Patent Group, is suing Blackboard for patent infringement. The patents in question appear to be incredibly broad and have also been asserted against Salesforce as well as high-profile customers of collaboration companies Jive, Hyperoffice, and Rally, including Dell, Starbucks, Hewlett-Packard, Aetna, and about 15 others. I have not read the patents carefully, but they seem to be related to applying push notifications to allow one person in a group to send notifications or requests to other people in the group.
Really.
For those of you tempted to Schadenfreude because of sins of Blackboard’s past, that would be a mistake. Patent trolls like Marathon can come after any company and their customers. In this case, the Marathon patents appear to be broad enough to be important for countless educational applications and could be applied against a range of vendors and schools alike. At the moment, there are no reports of suits against education customers, and there are practical reasons why the patent trolls would be somewhat unlikely to file suit against such customers in the future. But there is no legal barrier. We should all be rooting for Blackboard and the other defendants in this case.
Patents are a serious and ongoing threat to education. I had hoped during the Blackboard v. D2L fight that there would have been enough concern and awareness within the community to take some broader action, but that never happened. Unfortunately, there are very few tools to employ against patent trolls but what steps can be taken to minimize edupatent suits in general should be taken. Vendors in the space, who own substantial IP, should be encouraged by their customers to form a protective patent pool, for example. Patent pools are of little value against trolls, but at least it would reduce the likelihood of lawsuits by practicing companies. And since big technology players like Google, IBM, Microsoft, and Oracle do substantial business in this space, perhaps they could be persuaded to contribute broader patents and create a substantial umbrella of protection. It is even possible the patent pool might yield prior art that could be effective in invalidating patents held by trolls. The sector could also unite to give companies like Marathon a PR black eye whenever they come after educational software. There are steps that could be taken, but educational leadership needs to step up to make it happen.
You can find and read the legal complaint here.
I, too, had hoped at the time for the emergence of a mature industry approach in the edtech space towards software patents as a result of Blackboard’s past actions. Institutions need to become much wiser in terms of the legal aspects of software in general. It is not all blue skies and roses. Wishing away Bad Things and remaining under-informed of not only how software patents work but also how contracts work is not an effective approach to dealing effectively with situations like this. Unfortunately the world is not a perfect place, and these situations will continue to impact us – at least until our patent system is meaningfully reformed. Mitigating risk in this area should be a component of any software decision.
In no way am I defending Blackboard’s previous aggressive and offensive behavior towards Desire2Learn. This I believe was a strategic mistake on the part of the organization at the time. While the battle was won, and the rallying against Blackboard ultimately resulted in its loss of its primary LMS patent, this has left the organization in a weaker position to defend itself (and in turn its customers) against frivolous lawsuits – the same type of lawsuits to which every other LMS vendor is susceptible, too.
The details surrounding software-related intellectual property form an incredibly complicated space, and as Phil notes alliances can be an effective means to proactively thwart patent trolls. Universities, coincidentally, collectively own a lot of patents. Combined with the vendors in this space, I believe there is an opportunity to make an impact that leaves everyone in a better place. And in the end, this approach might be less costly and involve less effort than fighting to invalidate each patent piecemeal.
The claim asserted here seems vulnerable to prior art. It would be worth enlisting the support of Ask Patents (http://patents.stackexchange.com/) to enlist community support to assist in the defense.