Update: immagic has several more documents available (one, two, three, four) on what is apparently an outgrowth of a long-running conflict between iParadigms, the company that owns Turnitin, and Sciworth, the company that owns the Safe Assignment anti-plagiarism technology licensed by Blackboard. I haven’t read any of this documentation but am pointing you to it in the interest of getting as much raw data out to the community as possible.
More documentation is available. Apparently, Blackboard is not threatening Turnitin with a patent. Turnitin is threatening Blackboard with their patent. Blackboard is pro-actively filing suit in response to the threat, claiming that…
…well…
…there are some very strange twists to this one, folks…
As you might imagine, the spat is over Blackboard’s new anti-plagiarism features that compete directly with Turnitin’s flagship product. Turnitin apparently claims to own a patent on this stuff, and theirs lawyer have informed Blackboard’s lawyers that they believe Bb infringes.
As it turns out, Turnitin is a Blackboard partner. And, apparently, part of the agreement that Blackboard has its development partners sign is a clause stating that those partners will not assert intellectual property against Blackboard. Blackboard is essentially asserting that Turnitin signed away its right to sue and is asking the court to confirm that fact. Turnitin, for its part, claims that Bb is interpreting the clause overly broadly.
Now, besides perhaps giving Blackboard’s partners cause to give their contracts a second look, this really illustrates that the edupatent problem is not just limited to one isolated incident. Once again, we have two companies that are spending their money on litigation rather than improving their products for their customers, and once again we have an entire category of educational software that is effectively frozen out for new entrants (and new innovation) until such time as the patent is invalidated–if it ever is.
Is Blackboard Inc. acting up *again*? Having looked over the
facts as presented by Blackboard, they certainly do appear to be
interpreting their contract with iParadigms very broadly indeed.According
to Count Three of their complaint, they’re asserting that if any
company forms a partnership with Blackboard, such partnership grants
Blackboard an unlimited implied or express license over their their
partners’ products for perpetuity… and not just to use a copy of
those products, but to commercially sell them as their own ("an implied
or express license to practice the ‘301 patent").Having
appalled their customers and the wider education community with their
assertion of an overly broad patent against Desire2Learn, it seems to
me that Blackboard will alienate members of their own development
community with their latest claims.
Keep in mind that iParadigms is the one asserting the patent. This looks very messy all around.
Actually, iParadigms isn’t "asserting" their patent – at least, not in the legal sense of the word. According to their press release, they were simply in business negotiations with Blackboard and were never intending to sue.It just feels like Blackboard is being the schoolyard bully. On the one hand, they patent broad ideas in educational technology and wield them aggressively against Desire2Learn; on the other hand they claim their own business partners’ ideas as their own – according to Claim Three, they seem to feel that the terms of the Blackboard partnership agreement gives them an unlimited license to their partners’ intellectual properties in perpetuity. Any company would have to be mad to partner Blackboard under those terms, unless, of course, the agreement also gave them a license to all of Blackboard’s intellectual property in perpetuity… but unfortunately, the agreements seem ridiculously lopsidedin Blackboard’s favour.Basically, Blackboard are staking their claim on all successful educational technologies – the fundamental workings of the learning management system, as well as all of the ideas their so-called partners bring by their association with Blackboard – either patenting them as their own, or asserting that such technologies are licensed to them in perpetuity.This kind of poor conduct isn’t going unnoticed by the educational community at large. Every one of the 5 tertiary institutions here in Canberra used to be a WebCT user. Since Blackboard’s patent suit against Desire2Learn, four of us have been re-evaluating our relationships with Blackboard – with two completely ruling Blackboard products out of consideration.This latest move by Blackboard does nothing to improve its credibility in our community.
In legal terms, to "assert" a patent means to attempt to enforce it. This doesn’t have to be a court filing; a letter from a lawyer counts.
I’m not going to argue–pro or con–on the general merits or demerits of Blackboard as a vendor. You have both the right and the responsibility as the consumer to make your own judgments.
My own concern is with the damage that assertion of edupatents does to innovation and choice in the market as a whole. I oppose their assertion, regardless of who is doing the asserting.