e-Literate

Present is Prologue

Tag: edupatents

  • Educational Software Patents: A Call to Vendors

    A number of people responding to the Chronicle’s article on the Elsevier patent asked me to write something about it. For those of you who haven’t been following ed tech for at least a decade or just haven’t been following e-Literate for that long, the main reason that people who weren’t my mom started reading this blog in significant numbers was the work I did explaining the patent that Blackboard was asserting against D2L, the mechanics and progress of the lawsuit and, more generally, how software patents work and why they are bad for ed tech. So I felt obliged to respond to requests for my thoughts regarding the Elsevier patent. I published them in my reaction in our column at the Chronicle. Since it’s behind their pay wall, I’ll briefly summarize the points here:

    • For a variety of reasons related to the legal complexities of software patents, we can’t really know the legal scope of Elsevier’s patent unless and until it goes to trial.
    • Trying to figure out what the patent means before is not only hard but could put you and your employer at increased legal risk, so read it at your own peril. Seriously.
    • Elsevier’s public statements indicate that they might be willing to assert it (i.e., sue somebody for infringement of it).
    • Whatever your general opinion of software patents may be, offensive use of them in education is really bad because the companies are too small and the profit margins too thin to support that kind of legal activity (in contrast to, say, the mobile phone and pharmaceutical industries). Offensive use of software patents could destroy progress and innovation in educational software.
    • Inevitably, more and more leaders of education-related companies—including Elsevier’s current CEO—were not around during the Blackboard patent suit and have not seen the massive brand damage that Blackboard did to itself in the process. The danger of patent assertion is increasing because the deterrent is fading.
    • There are few legal tools available to deter patent assertion. The best tool universities have is economic.

    I ended by calling for leaders of educational institutions to gather together and sign a pledge that they would not procure products from companies that assert education-related software patents. But I don’t have a lot of hope that it will happen. After all, if they weren’t sufficiently motivated to take collective action during and immediately after the Blackboard suit, why would they be now? This doesn’t mean that they will fail to act in the face of an actual patent suit. Schools voted with their feet in response to Blackboard. In fact, the brand damage was so profound that I believe it is impacting the company’s sales to this day, even though the CEO during the suit left a long time ago and the legal architect of the suit has left the company as well. There will be consequences for companies that assert educational software patents. But there is no visible deterrent for companies that do not remember Blackboard v. Desire2Learn. Blackboard spent a lot of money and retarded the LMS market for a long time before they finally admitted defeat.

    This is an area where vendors could show leadership. As I mentioned in the piece, the fact that educational software patents exist means that there is strong motivation for companies to file for patents that they can use in defensive counter-suits, even if they have no plans to ever use them offensively. D2L didn’t have any patents at the time of the lawsuit, but I would be shocked if they didn’t have any today for exactly this reason.

    The right thing for vendors to do here is to create what’s known as a patent pool. Any patent owner who contributes to the pool pledges to only use that patent for defensive counter-suits. In return, the owner also gets to use any other patents in the pool for defensive purposes. The rules would be a little more complex to work out than a typical patent pool because there is no single well-defined software category or product that they are protecting (like Linux or video streaming technologies, for example). But it could be done. And it would only take two or three players to get it rolling. The most obvious candidate to lead this is Blackboard. They have a strong need to define themselves as “not your father’s Blackboard” and probably still have patents. If they could get Pearson, McGraw Hill Education, or D2L at the table and hammer out the structure for a patent pool, then they could begin to invite other players in.

    In an era where algorithms are increasingly important differentiators in educational software, we can expect patents to proliferate and the temptation to assert them to grow accordingly. We really need corporate leaders to step up and demonstrate their moral commitment to protecting education from this growing threat. I’d love to see this happen and would love to help make it happen.

    Any takers?

  • Patents Rethought: Khan Academy Did the Right Thing

    To recap what’s happened so far:

    Since then, I had a little more time to look at the actual legal language of the agreement and reflect on the larger edupatent problem. And I’ve come to the conclusion that Khan Academy did the right thing by adopting the agreement. We should feel good about what they’ve done. And given the realities that software patents exist and defensive patents are therefore a necessary evil, we should encourage other educational patent holders to do as Khan has done and adopt the same agreement.

    (more…)

  • Ed Tech Patent Update: The Innovator’s Agreement

    Carl Straumsheim has a good piece out on the Khan Academy patent Inside Higher Ed today. Much of it is a primer on the uses and limitations of defensive patents, but there is a piece on the specific nature of the patent pledge that Khan Academy has signed that I missed. The pledge, originally created by Twitter, is quite similar to my own proposal in a number of ways. It turns the decision-making regarding offensive use of the patent over to another party and, importantly, the agreement travels with the patent, even if it changes hands:

    The IPA is a new way to do patent assignment that keeps control in the hands of engineers and designers. It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees’ inventions in offensive litigation without their permission. What’s more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.

    Shame on me for not doing my homework.

    The big difference between this pledge and the one I propose is that I am suggesting that the third party be a trust rather than the inventing engineer. This has several virtues. First, engineers die, and not all of them are going to be equally vigilant in protecting education. Can the engineer sell this right to somebody else? Can the right be inherited? If it isn’t inherited, is the patent then unencumbered? Giving the rights to a trust lays this concern to rest. It also creates a proactive deterrent because the trust could sue anybody that is asserting an ed tech patent.

    What I take from the details of Twitter’s pledge is that my proposal is probably legally viable. The original pledge just needs to be adapted to serve the specific needs of education.

  • Solving the Ed Tech Patent Problem

    You may have heard that Khan Academy has filed for several patents. Audrey Watters has written a really strong piece providing the details of the filings in the context of the history of ed tech patents and showing why some academics feel that the patent system clashes with the values upon which academia was built. In the process, she excavates some of my personal history in the Blackboard patent war. While I am sympathetic to arguments against ed tech or software patents on principle, my own personal reasons for getting involved with that fight were more utilitarian. I believed then, as I do now, that patents threaten to kill innovation in educational technology due to the specific characteristics of the market. The outcome of Blackboard v. Desire2Learn did not end that threat, although it did temporarily reduce it. The conversation being provoked by Khan Academy’s filings offers a new opportunity to come up with a more permanent solution. (more…)

  • Patent Troll Sues Blackboard for Patent Infringement

    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.

     

  • End of an Era

    Now that the Blackboard/D2L patent fight is over, I am taking down the edupatent feed harvester, which never worked particularly well anyway. Mostly what showed up in the feed were my own posts, which you can still access by going to the edupatents tag.

  • Blackboard v. Desire2Learn Is Over

    All lawsuits have been dropped by both sides. The companies will cross-license each others’ patent portfolios under undisclosed terms, which gives both companies an opportunity to save face. After three and a half years, higher education can move on. Left unresolved is the larger question of the role of patents in higher education, but that is at least as much a question for the universities as it is for the vendors.

    For now, though, I’m just happy it’s over.