Between multiple family visits and a case of the flu that’s had my flat on my back the last couple of days, I’ve fallen even further behind on my backlog of posts than I was upon returning from EDUCAUSE. In the interest of catching up, this post will be short. First, several bloggers have already pointed out John Mayer’s interview with law professor Vince Chiapetta about the Blackboard patent. If you haven’t given it a listen yet, do yourself a favor and make the time. We now have a legal expert on record as validating much of what the community has been saying about the patent and contradicting Blackboard’s position on a number of key points.
Also, Stephen Marshall has posted another summary of the Blackboard Town Hall meeting at EDUCAUSE. Here’s an excerpt:
Question: (from me) Blackboard appears to be having things both ways by claiming that their patent is so narrow that it can’t be cast as a patent on e-learning systems while also stating that a very detailed analysis is needed to show the lack of prior art in ostensibly similar products like Lotus Notes and FirstClass. Can Blackboard appreciate that this places developers of new systems ina difficult position as they can’t afford to pay for an indepth legal investigation of their new idea, especially in the context of open source or higher education, in order to determine whether or not it is infringing? In particular this is an issue when external research funds are used as the risk of patent infringement is likely to dissuade funding bodies from supporting even initial explorations.
Trust us – there’s no risk of enforcement against professors. Sadly this is an almost useless answer, there’s no guarantee that they won’t sue our employers, and there’s no guarantee that future management won’t change their mind, especially if a new open source product challenged Blackboards revenue.
It was also very clear that Blackboard failed to appreciate the very real problem this patent poses for anyone engaged in e-learning systems research. Every granting agency is going to have to seriously consider the risk that funded projects will infringe the patent and be forced to pay royalties – something that is likely to see them pass on funding rather than take the risk.
Matthew Small also delivered a damning indictment of software patents without realising it when he added that reviewing existing patents is a normal activity when creating software, that should be done as a matter of routine. This is clearly nonsensical for anything other than large software firms as the number of patents is vast and growing and as he himself noted, specialist and detailed analysis is needed to determine infringement. The idea that the creation of software should be a legally bounded and constrained activity is repugnant personally and its sad that increasingly lawyers seem to be controlling innovation in software rather than programmers.
Yup.
