By now you’ve probably seen that the Software Freedom Law Center (SFLC) has filed a request to re-examine Blackboard’s patent with the USPTO on behalf of Sakai, Moodle, and ATutor. You may have also seen that D2L has filed a different kind of re-examination request with the USPTO. (SFLC’s request is what’s known as ex parte, while D2L’s is inter partes.) I’ll have more to say about the legal maneuvers in tomorrow’s post. For now, I’d like to address a larger context.
The Sakai/Moodle/ATutor request is generally being characterized as the “Open Source” response to Blackboard’s patent. This is unfortunate, as is the fact that SFLC is perceived to be leading the charge. Because to my mind, the most important message from this filing to Blackboard and the market has nothing to do with Open Source.
ATutor, Moodle, and Sakai are not just three random FOSS projects. Each one represents a community of schools that is looking for an LMS to meet their needs. Together, the three communities comprise a very broad and diverse group of institutions, from prestigious R1’s to small community colleges to professional schools to just about everything else under the sun. I’m sure that the colleges and universities that chose each of these platforms went through a selection process as serious, rational, and comprehensive as their counterparts who chose Blackboard, Desire2Learn, ANGEL, or any other system. Likewise, I’m sure that the projects’ respective governing boards which, by and large, are made up of the same folks who chose the systems for their own colleges and universities, did not choose to take on the cost, time, and risk associated with entering into the legal fight for frivolous or irrational reasons. Whether they would characterize the Blackboard patent as a threat to Freedom or a threat to consumer choice, the common theme is that three different coalitions of universities with governing bodies based in three different countries (and constituencies that are truly global) all decided that the Blackboard patent represented a significant threat to their institutions’ respective and common interests. The fact that their response to the situation is expressed differently than that of, say, D2L’s customers is mainly because of the different characteristics of the governance mechanisms behind the products. The best way to view this re-examination request is as being consistent with the EDUCAUSE letter, i.e., an expression of distress at the damage that this patent does to innovation in the field and to the options for all universities regardless of their current preferred platform.
Sadly, in responding to this joint action by three diverse communities of colleges and universities, Blackboard has once again managed to insult the very institutions that the company would like to have as its customers. Matthew Small said, “This is more of an emotional and religious issue for some people than that it is really a practical concern.” Mr. Small has forgotten that “some people” are the same ones who make purchasing decisions for their institutions. He just accused them of religious zealotry.
I would be curious to know how the combined market share for Moodle, Sakai, and ATutor compares to Blackboard’s. What percentage of the total LMS market did Blackboard just accuse of being irrational?
If somebody doesn’t get to it before me, I’ll post something tomorrow explaining the basics of ex parte and inter partes re-examination requests and why the Sakai/Moodle/ATutor coalition and D2L may have chosen these two strategies. In the meantime, I highly recommend this primer on the topic, archived at im+m eLibrary and referenced by D2L in their comprehensive posting of all the latest legal filings.
