Desire2Learn filed their response to Blackboard’s infringement suit, and they are coming out swinging. They’re claiming that the patent is invalid because Blackboard knowingly refrained from disclosing relevant prior art (including software they had purchased such as Prometheus and previous standards work done through the IMS). As I have discussed here before, Blackboard had an affirmative obligation to disclose any prior art of which they were aware. To do so is immediate grounds for invalidation of the patent. D2L basically calls for that immediate dismissal, payment of their legal fees by Blackboard, and also opens the door for punitive damages. There some other stuff in here that I don’t understand yet; I’ll post follow-ups as smarter people explain the hard parts to me.
Tag: Blackboard-Inc.
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Being Fair to Blackboard
Al Essa has taken me to task a bit for appearing to favorably compare Microsoft and IBM to Blackboard. He notes that companies can be good corporate citizens on certain patents while predatorily asserting other patents. Let me make a couple of points in response. First, my intention wasn’t to say that Microsoft or IBM is “better” than Blackboard somehow. My intention was only to show that Matt Small’s assertion that patent holders can’t make definitive statements about how they won’t assert their patents is not only false but also flatly contradicted by well-publicized behavior of several large, conservative, pro-IP companies. Second, although software patents in general make me queasy, I am not personally taking the position that we should be fighting to end all software patents or even that there is never a case when software patents should be asserted. I suspect that Al and I may differ on this point. There is plenty of room for legitimate disagreement among intelligent and fair-minded people about how broadly we should be defining the “problem” that we are trying to solve. My own personal interest right now is focused on taking pragmatic steps to end the specific threat to innovation in e-learning technologies and to use market mechanisms (as opposed to legislative mechanisms) to do so.
Finally, and in some ways more importantly, I agree completely with Al on the larger point that it is important to be fair to Blackboard. In fact, I’ll go further. If Blackboard (a) drops their suit against D2L, (b) offers some kind of reasonably broad and legally binding pledge of non-assertion of present and future patents, and (c) provides material support to the creation of industry-wide measures intended to blunt the threat of patents to innovation in education, I pledge to do everything I can to help them repair their reputation and reap the benefits of good behavior. I don’t hate Blackboard. I hate what they are doing. And I want their help. At the end of the day, I look for actions that will provide the greatest benefit to students and teachers. Period. If Blackboard helps foster innovation in e-learning by working to prevent the sort of threat that they are currently demonstrating, then I’m fer ’em. If they continue to use intellectual property law to create barriers to entry for potential innovators, then I’m agin’ ’em.
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Even Microsoft Disagrees with Blackboard
I recently noted that, contrary to Blackboard General Counsel Matthew Small’s assertion that no patent holder can say for certain what they will or will not do with a patent, IBM has done exactly that by providing royalty-free licenses to linux on hundreds of their patents. But hey, that’s IBM. They’re into all that crazy hippy Open Source linux stuff. Surely a normal software company wouldn’t do that…right?
If IBM is too radical for you, then let’s look at Microsoft. Surprise, surprise, even that bastion of voracious techno-capitalism has announced that they promise–promise!!–not to assert patents that they hold on web services against anyone. And once again, that promise comes in the form of a legally binding license.
The next time any of you has the opportunity to speak with Matt Small, ask him why Blackboard is unwilling to do what all of the software industry leaders are doing with increasing frequency. Ask him why Blackboard will not provide a royalty-free license to whomever they claim that they will not sue. If you are a Blackboard customer, ask him why he won’t offer you a royalty free license to indemnify you. He clearly can. His only other truthful answer would be that it would reduce the value of the patent for him to do so. Because, you know, somebody someday may buy the patent from Blackboard, and if that somebody can’t sue you with it then Blackboard will get less money from the sale.
Nice, huh?
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What You Can Do About the Blackboard Patent, Part I
A number of people have commented to me that they wish that they could make a difference in the Blackboard patent fight. In the process, they usually imply that I have some power that they don’t. The thing is, I’m not a decision-maker at my university, I don’t run an Open Source project or professional association, and I’m not in a position to hire an army of lawyers. Basically, I’m just a guy with a blog. If I can make a difference then you can too.
Here’s something really simple that you can do at your university, regardless of what your role is and regardless of what LMS you use (Even if it’s Blackboard!): (more…)
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Hiding Falsehoods and FUD Behind Legalisms
In a recent article in the Windsor Star, everyone’s favorite plain talker, Blackboard General Counsel Matthew Small, made the following statement:
“No patent holder can definitely say, ‘I will not do X with my patent.’ However, I can say very confidently that we are focusing on the commercial sector.”
The first half of this statement is absolutely false and Small should (and probably does) know better. Which perhaps tells us something about the second half of his statement as well. (more…)
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Blackboard's Answers to the IMS Blogged
Stuart Sim has live-blogged the IMS Q&A session with Blackboard regarding their patent. For those of you who don’t know him, Stuart is no wild-eyed long-haired academic commie pinko. He’s the Chief Architect at Sun Microsystems’ Global Education and Research Group. Although there doesn’t appear to be much news out of the conversation, I think you’ll find his analysis interesting.
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Al Essa's Analysis of the Blackboard FAQ
After promising to wait for Al’s analysis before publishing mine, I mistook his initial post for his final word and jumped the gun. Al’s own blow-by-blow analysis is up now. As you’ll see, we’re in pretty close agreement on it.