e-Literate

Present is Prologue

Tag: Blackboard-Inc.

  • Blackboard Patent Celebrity Death Match

    I note with satisfaction that Eben Moglen’s keynote speech [MP3] and debate with Matthew Small [MP3] have already been reported and commented on in a number of places. (See, for example, Seb’s analysis.) This pleases me for two reasons. First, it means we have developed a healthy community response mechanism to make sure we are all informed of future patent shenanigans. The second reason it pleases me is because, frankly, I’m sick of talking about nothing but the patent fight. The Sakai conference, for example, was excellent, and there were many good conversations that I’d much rather blog about (and will blog about in due course). That said, since I was actually in the room for both presentations, I feel obliged to give my own gloss on them.

    Moglen’s keynote was fascinating. The guy is clearly brilliant. While I didn’t agree with everything he had to say, I agreed with much of it and learned much from it. The talk is well worth listening to and well worth sharing with others. Alas, I cannot say that I feel the same way about the debate between Moglen and Small.

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  • Ex Parte and Inter Partes Patent Re-Examination

    As you know by now, the Blackboard patent has been challenged at the USPTO by separate requests filed by the SFLC and D2L respectively. SFLC filed what’s known as an ex parte request, while D2L filed what’s known as an inter partes request. I think it’s important for the community to become familiar with these two strategies because we’re likely to see them employed again in our future. Seb has some nice commentary up about the basics of the specific situation with the Blackboard patent. (Be sure to read the comments; there’s one by one of the leading researchers on patent re-examination.) What follows here is more of a high-level overview of the legal strategies in general.
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  • What the Sakai/Moodle/ATutor Re-Examination Request Really Means

    By now you’ve probably seen that the Software Freedom Law Center (SFLC) has filed a request to re-examine Blackboard’s patent with the USPTO on behalf of Sakai, Moodle, and ATutor. You may have also seen that D2L has filed a different kind of re-examination request with the USPTO. (SFLC’s request is what’s known as ex parte, while D2L’s is inter partes.) I’ll have more to say about the legal maneuvers in tomorrow’s post. For now, I’d like to address a larger context.

    The Sakai/Moodle/ATutor request is generally being characterized as the “Open Source” response to Blackboard’s patent. This is unfortunate, as is the fact that SFLC is perceived to be leading the charge. Because to my mind, the most important message from this filing to Blackboard and the market has nothing to do with Open Source.

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  • The Economic Impact of the Blackboard Patent Suit

    One of the topics that I’ve been meaning to get to since EDUCAUSE is the likely impact of the patent suit on the financial health of Blackboard, Desire2Learn, and the other LMS players. I got to talk to a number of university decision-makers and observe the activity at the booths of various LMS vendors. My conclusion? In the short term, both Blackboard and D2L are likely to do just fine. However, a slowdown 9-12 months out is likely.

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  • The EDUCAUSE Letter to Blackboard is Now Public

    Insider Higher Ed has let us know that the EDUCAUSE board has published its letter to Blackboard. This is such a remarkable (and courageous) letter that I feel compelled to reproduce it below in its entirety: (more…)

  • Conversations with Desire2Learn and Blackboard

    While at EDUCAUSE, I had opportunities to sit down with both Blackboard’s General Counsel Matthew Small and the Desire2Learn executive team. In the spirit of diplomacy, everything in this post has been reviewed by both sides, and there are aspects of our conversations that will remain private.

    In my conversation with Matt Small, we spent a fair bit of time talking about the impacts of patent assertion on the educational technology ecosystem. I emphasized that, even if I thought that Blackboard’s patent were valid, I would still oppose their efforts because of the damage that an environment of patent litigation will have on innovation. I also let him know that I believe there are others in the community who feel the same way. (I don’t want to presume to speak for anyone but myself.) In turn, the position that he articulated to me was pretty consistent with his public statements.

    My conversations with the Desire2Learn team included CEO John Baker, COO Jeremy Auger, General Counsel Diane Lank, and Director of Marketing John Mcleod. The main message I took away from that conversation was pretty much the same one that they recently posted in their patent litigation blog, i.e., that they view themselves as fighting for the interests of the entire educational community, including universities, Open Source projects, and proprietary competitors.

    Thanks to both parties for making the time to speak with me.

  • Quick Blackboard Updates

    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.