Al Essa informs us that there is a new edupatent suit by a new player. The critical difference here is that this time universities are being sued. At the moment, the company asserting the patent has confined itself to suing for-profit universities (University of Phoenix, Inc, The Apollo Group, Inc., Capella Education Company, Laureate Education, Inc., and Walden University, Inc.). But there’s nothing that legally prevents it from suing any university. Nobody is exempt from liability exposure.
I have argued from the very beginning of the edupatent mess that the problem is much bigger than one patent. Nor will this next one be the last.
Here’s what I know so far, what the implications are, and what we need to do about it:
It’s still early on, but I have been told that Digital Vending Services International, the company that has filed suit, was created specifically to hold and assert intellectual property. They don’t actually produce anything, as far as I know. In other words, they are what is known in the industry as a “patent troll.” The patent that they are asserting is apparently based on software that was developed under contract for the United States armed forces by another entity. (I’m not sure who did the actual development, but I’ll try to find out.) I believe that Digital Vending Services International is a legal entity that was created to hold the intellectual property that came out of this work. (Again, it’s early, and I’m not sure that I’m understanding these details correctly.)
You may be wondering how it is that a private entity could patent something developed with government funds. Well, it turns out that universities have been aggressively lobbying Congress to be able to continue to do exactly that. Now they are being hoisted by their own petard. As I have been saying for some time, United States research universities are on both sides of this issue.
As for what the patent covers, there’s another problem. Due to one of the perversities in U.S. patent law, if an an entity (whether it’s a corporation or university) is found to infringe on a patent, and if any employee of that entity knows the details of what the patent covers–whether or not that employee has anything to do with the infringing product or even knows that it exists–then the employer can be found guilty of “willful infringement” and be liable for triple damages. (This will change if the patent reform bill that is currently before Congress passes.) As a result, my employer, like many software vendors and all of the big ones, forbids its employees from looking at the details of a software patent for any reason. I knew this when I took my job at Oracle last year and, since I believe that it is reasonable for my employer to ask me to refrain from actions that expose them to unreasonable legal liability, I accepted it as a condition of employment and will continue to abide by it. So I cannot write the English translation of this edupatent or the next one. In fact, I can’t even pass on such analyses unless I can link to them without reading them. So the burden falls on you, dear reader.
Fortunately, there are a number of things that you can do to help with this fight which, I hope is now becoming clear, is a fight that could drastically affect everyone in higher education:
- Go to the noedupatents.org wiki and help to create a translation of the patent and contribute to a list of possible prior art. Even if you don’t think that you have the skills to contribute, find and track the page. Stay informed.
- Use the edupatents news harvester. You can subscribe by email or RSS. And please, please, please, if you write something related to edupatents, be sure to either give it an “edupatents” tag or use the word “edupatents” somewhere in the document. You can also tag documents (including ones that other people created) with “edupatents” on del.icio.us. Any of these methods will ensure that the documents get picked up in the news harvester.
- Make sure that your college’s high-level administration knows that universities are now being sued for edupatents and there are more patents and more suits that are likely to come. This is a problem that they cannot afford to ignore.
- If you are a decision-maker or influencer of a university administration–particularly at a patent-producing research university–think about starting a movement to create a summit on patents and higher education. Individual universities will not be able to protect themselves on their own. This will require a concerted effort for legal reform.
This is not going away, and it is going to get much worse before it gets better. The educational community must respond to this quickly and decisively in order to limit the inevitable damage.
