e-Literate

Present is Prologue

Tag: edupatents

  • More on Software Licenses and Patents

    Since my last post, I’ve gotten some good feedback from folks who are knowledgeable about the issues. I hope to write about this topic in more detail after I’ve gotten back from EDUCAUSE and had some time to do a little more research, but in the meantime, I want to at least mention two of the points of criticism that I’ve received about the first post and that deserve some attention.

    First, one reader pointed out that the protection in the Apache clause that is weakened in the ECL is actually untested legally. Apache, as I understand it, puts the burden on the contributor to vet the IP with the institution they represent. If an employee of BigResearch U contributes code that that is covered by a patent held by BigResearch U, then there is an implied granting of a license covering that patent. In theory, this is good because the benefit of the doubt goes to the adoptee. It removes uncertainty about possible infringement.

    Except that maybe it doesn’t. I’m told that this implied license has not been tested and might not hold up in court. So, my reader argues, the additional ECL clause that I complained about simply makes explicit a legal wrinkle that may exist with the Apache license anyway. And by making it explicit, the license forces the community to look to other, better tested mechanisms.

    Which brings me to another major point brought up by a different reader. In my first post, he argues, I only talked about half the equation. I didn’t talk about the contributor agreement that goes along with the ECL and adds protections at the time of code contribution. That’s a fair criticism, particularly given that not all open source projects have this protection. (For example, I don’t think Moodle uses contributor agreements, although I’d appreciate input from anyone who knows for sure.) You can only evaluate the total patent protection provided by the ECL if you look at both the license and the contributor agreement together.

    As I wrote at the top of this post, I’ll be going to school on these topics over the coming weeks so that I can post more about them. Ironically, with all the coverage of edupatents I’ve done over the past year, the intersection with copyright licensing is just not something I’ve gotten into very much. I want to thank Chris Coppola, John Lewis, and all the folks who have been helping me privately to get up to speed on these issues. With a little luck, we’ll get some more public conversation going among the various knowledgeable folks in the community so that the larger community (including me) can broaden its understanding of this facet of the edupatent problem.

  • Backward University IP Polices Force Convoluted Sakai License

    A couple of weeks back, I was somewhat disturbed to read a post by Unicon’s John Lewis on the forthcoming Version 2.0 of the Educational Commons License (ECL), which is used by both the Sakai and the Kuali projects. While pointing out some significant improvements over the previous version, John notes correctly that the proliferation of open source licenses has a cost in terms of confusion in the marketplace and wonders why Sakai and Kuali can’t just use the Apache license upon which ECL is based. (After all, he observes, Moodle uses plain vanilla GPL.) So John did a little digging, and the only difference he could find between ECL and the Apache license was a clause on patents. Specifically, ECL weakens Apache’s patent protection clause.

    Seeing this, I contacted Chris Coppola, the Sakai board member who has been leading the charge on licensing issues. Chris was gracious enough to post more detail on the issue and help me get in contact with other folks who could help me make sure that I understand the legal implications correctly. Now, I happen to trust Chris’s judgment and motivation, and I am confident that the license would have come out the right way if he had final say. Unfortunately, he does not. Nor does anyone on the Sakai Foundation Board. As a result, ECL 2.0 is disturbingly flawed from the perspective of the edupatent crisis. (more…)

  • Court Re-affirms Invalidation of First 35 Blackboard Patent Claims

    This just in from the D2L patent blog:

    On August 4, we announced that Magistrate Judge Hines had issued his Memorandum Opinion Construing Claim Terms of the United States Patent No. 6,988,138 (the “Markman” decision). We noted that the decision was subject to procedural appeal. The decision rendered claims 1-35 invalid. On August 22, we posted the Objections that Blackboard filed to the Memorandum Opinion, as well as the Conditional Objections that we filed. Finally, on August 30, we posted the respective responses to the Objections and Conditional Objections.

    Today, we received notice that the Court issued its Order Denying Plaintiff’s Objections to Memorandum and Order Construing Claim Terms of the United States Patent No. 6,988,138. In the Order – as indicated by its title – the Court, by Judge Clark, denied Blackboard’s Objections. It denied as moot our Conditional Objections. We had requested that the Court consider our Objections only if it reversed the initial Memorandum Opinion.

    The bottom line: Two judges have now ruled Blackboard’s Patent Claims 1-35 are invalid because of indefiniteness of claim 1. Blackboard cannot claim infringement at trial of those claims.

    We mentioned before that we were pleased with Judge Hines’ decision. Suffice it to say we are now very pleased.

  • On Edupatents, Corporate Branding, and Putting Words in People's Mouths

    There’s a write-up of the edupatent flap in eSchool News. It provides a reasonably good summary of the basic history, as far as these types of stories tend to go, and also gives a high-level account of the current state of the legal battle. (Short version: It’s dragging on.) All in all, it’s a useful summary of what we already know. But it does include one statement by Blackboard’s General Counsel Matthew Small that’s a bit of a jaw dropper.

    (more…)

  • Should Universities Patent Their Research? Universities Say Yes. But should they?

    This is a guest blog post by Jim Farmer, Coordinator, Scholarly Systems Group at Georgetown University and editor at the eReSS project, University of Hull.

    At the December 2006 Sakai Conference in Atlanta many expressed the view that patents inhibit collaboration and innovation in teaching and learning. But that was not the view expressed by higher education representatives in last month’s Congressional hearing.

    (more…)

  • Blackboard v iParadigms Is Over

    As has already been reported in several other fora, Blackboard and iParadigms (the maker of Turnitin) have settled their patent dispute out of court and are working together again as partners. I’m not sure that we’ll ever really know what happened between the two companies, but any amicable settlement that leads to the non-assertion of an edupatent is good news for universities.

  • Sorting Out the Issues in Blackboard v iParadigms

    The latest news is that Blackboard has stated that the language of the intellectual property waiver in their contract with iParadigms was specific to that contract, motivated by specific concerns about the particular company and business relationship involved. Blackboard further states the language is not present in their standard Building Blocks contract or other partner contacts. This is an important clarification and one that I am happy to pass on.

    But from the editorial perspective of this blog, the contract issue is and always has been a side issue anyway. The reason that the Blackboard v iParadigms story hit these pages in the first place was because it was about one educational software company asserting a patent against another. Now, because Blackboard was the one to file suit, it was logical to speculate that Blackboard was the one asserting the patent. Logical but incorrect, as it turns out. And the fact that the actors are in different roles than we might have thought should not change our views on the actions themselves. I have argued in these pages that asserting patents within the educational software sector, on balance, does more to stifle innovation than to foster it, meaning that its net effect is exactly the opposite of the intended effect of patent law. If one believes that to be true, then one must oppose the actions of any company seeking to pro-actively assert a patent for educational software and support the right of any company to mount a vigorous defense. There are many situational facts in this particular case that are unclear, but one central, salient fact is clear: iParadigms was seeking to assert a patent for educational software. From the perspective of the edupatent crisis, all other details are ancillary.

    While it can be tempting to equate poetic justice with actual justice, the two are not the same at all. Two wrongs don’t make a right.