Blackboard Inc rides roughshod over the desire to learn in Texas (‘the junk patent state’)

In my opinion, software is ideas, not stuff. It’s freely reproducable and benefits from many eyes looking at the source code and many contributors. That’s why it’s recommended that UK Higher Education use Open Source software wherever possible. And that’s why I object to software patents and want licensing to remain the copyright issue it currently is.

In 2006 Blackboard Inc had the sheer (indulge me) anti-education sociopathic wickedness to patent the idea of a VLE. The day after they won the patent, they went after diminutive commercial Canadian elearning company Desire2Learn for patent infringement and easily won. I don’t use Blackboard – I use an Open Source VLE, Moodle, and interpret Blackboard’s litigiousness as an act of war.

This piece attempts to answer the following questions:

  • What’s the state of software patent law?
  • What is the nature of Blackboard’s patent?
  • Why is it a bad patent?
  • What is the HE e-learning community’s response?
  • What can we do?

Software patent law

What’s the future of patent law? The US has been insisting on harmonisation since around 1994 when it threatened to walk out of WTO talks, giving rise to TRIPS (Trade Related Aspects of Intellectual Property Rights). The relevant part of TRIPS here is Article 27, paragraph 1:

“(…) patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. (…) patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.”

In the EU moves to relax the laws (i.e. changing the law to allow Blackboard-type patents) have been thrown out in 2003 and 2005. Paul Harnack, the Controller General of the UK Patenting Office is quoted as saying:

“Some have argued that the TRIPS agreement requires us to grant patents for software because it says “patents shall be available for any inventions (…) in all field of technology, provided they are (…) capable of industrial application”. However, it depends on how you interpret these words. Is a piece of pure software an invention? European law says it isn’t. Is pure software technology? Many would say no. Is it capable of “industrial” application? Again, for much software many would say no. TRIPS is an argument for wider protection for software. But the decision to do so should be based on sound economic reasons. Would it be in the interests of European industry, and European consumers, to take this step?”

This will come up again in the EU soon.

What is the nature of Blackboard’s patent?

Indeed. Here is the idea Blackboard unfeasibly has patented (the claim is reproduced in full – items 1-44 – to demonstrate the audacity of its scope):

1. A course-based system for providing to an educational community of users access to a plurality of online courses, comprising: a) a plurality of user computers, with each user computer being associated with a user of the system and with each user being capable of having predefined characteristics indicative of multiple predetermined roles in the system, each role providing a level of access to a plurality of data files associated with a particular course and a level of control over the data files associated with the course with the multiple predetermined user roles comprising at least two user’s predetermined roles selected from the group consisting of a student role in one or more course associated with a student user, an instructor role in one or more courses associated with an instructor user and an administrator role associated with an administrator user, and b) a server computer in communication with each of the user computers over a network, the server computer comprising: means for storing a plurality of data files associated with a course, means for assigning a level of access to and control of each data file based on a user of the system’s predetermined role in a course; means for determining whether access to a data file associated with the course is authorized; means for allowing access to and control of the data file associated with the course if authorization is granted based on the access level of the user of the system.

2. The system of claim 1 wherein the instructor user is provided with an access level to enable the creation and editing of a plurality of files associated with a course.

3. The system of claim 2 wherein the course files comprise an announcement file.

4. The system of claim 2 wherein the course files comprise a course information file.

5. The system of claim 2 wherein the course files comprise a staff information file posted to all registered in the course.

6. The system of claim 2 wherein the course files comprise a course document file posted to all registered in the course.

7. The system of claim 2 wherein the course files comprise an assignments file posted to all registered in the course.

8. The system of claim 2 wherein the course files comprise a dropbox file.

9. The system of claim 2 wherein the course files comprise an asynchronous communication file.

10. The system of claim 2 wherein the course files comprise a synchronous communication file.

11. The system of claim 2 wherein the student user is provided with an access level to enable reading of a plurality of files associated with a course.

12. The system of claim 11 wherein the student user is provided with an access level to enable modification of a subset of the plurality of files associated with a course.

13. The system of claim 11 wherein the user is provided with an access level to enable creation of a student file associated with a file for which the student user is able to read.

14. The system of claim 13 in which the file that the student is able to read is an assessment file created by the instructor user, and the student file created by the student user is a response to the assessment file.

15. The system of claim 14 wherein the assessment file comprises a plurality of examination questions selected by the instructor user to assess the ability of the student user.

16. The system of claim 15 wherein the examination questions are selected by the instructor user from a predetermined pool of available examination questions.

17. The system of claim 15 wherein the examination questions are created by the instructor user substantially at the time of the creation of the assessment file.

18. The system of claim 15 wherein the student file is reviewed by the instructor user and assigned a grade.

19. The system of claim 18 wherein the grade is made available to the student user.

20. The system of claim 18 wherein the instructor user collates a plurality of grades obtained from reviewing a plurality of student files, and wherein the collated grades are made available to all student users associated with the course.

21. The system of claim 13 in which the file that the student is able to read is an assignment file created by the instructor user, and the student file created by the student user is a response to the assignment file.

22. The system of claim 8 wherein the dropbox file comprises a plurality of files transferred to the server computer from one or more student users associated with the course.

23. The system of claim 22 wherein the instructor user is provided with access to the files in the dropbox file, whereby the instructor user may download, edit and upload the files in the dropbox.

24. The system of claim 1 wherein a user is required to enter a login sequence into a user computer in order to be provided with access to course files associated with that user.

25. The system of claim 24 wherein the user is provided with access to all courses with which the user is associated after entry of the logon sequence.

26. The system of claim 25 wherein the user is provided with a web page comprising a plurality of course hyperlinks, each of said course hyperlinks associated with each course that the user has enrolled in.

27. The system of claim 26 wherein selection of a course hyperlink will provide the user with a web page associated with the selected course, the web page comprising a plurality of content hyperlinks to various content areas associated with the course.

28. The system of claim 27 wherein said content hyperlinks comprise an announcement area hyperlink, a course information hyperlink, a staff information hyperlink, a course documents hyperlink, an assignments hyperlink, a communications hyperlink, and a student tools hyperlink.

29. The system of claim 28 wherein selection of the announcement area hyperlink provides a web page comprising a group of course announcements.

30. The system of claim 28 wherein selection of the course information hyperlink provides a web page comprising information regarding the associated course.

31. The system of claim 28 wherein selection of the staff information hyperlink provides a web page comprising data regarding the instructors of the associated course.

32. The system of claim 28 wherein selection of the course documents hyperlink provides a web page comprising a listing of documents associated with the course.

33. The system of claim 32 wherein the listing of course documents comprise active hyperlinks to the documents.

34. The system of claim 28 wherein selection of the assignments hyperlink provides a web page comprising a group of course assignments.

35. The system of claim 28 wherein selection of the communications hyperlink provides a web page comprising hyperlinks to a group of communication tools comprising an asynchronous communication tool and a synchronous communication tool.

36. An method for providing online education method for a community of users in a network based system comprising the steps of: a. establishing that each user is capable of having redefined characteristics indicative of multiple predetermined roles in the system and each role providing a level of access to and control of a plurality of course files; b. establishing a course to be offered online, comprising i. generating a set of course files for use with teaching a course; ii. transferring the course files to a server computer for storage; and iii. allowing access to and control of the course files according to the established roles for the users according to step (a); c. providing a predetermined level of access and control over the network to the course files to users with an established role as a student user enrolled in the course; and d. providing a predetermined level of access and control over the network to the course files to users with an established role other than a student user enrolled in the course.

37. The method of claim 36 wherein at least one of the course files comprises a course assignment, further comprising the steps of: e) the student user creating a student file in response to the course assignment; and f) the student user transferring the student file to the server computer.

38. The method of claim 37 further comprising the steps of: g) the instructor user accessing the student file from the server computer; h) the instructor user reviewing the student file to determine compliance with the course assignment; and i) the instructor user assigning a grade to the student file as a function of the determination of compliance with the course assignment.

39. The method of claim 38 further comprising the step of the instructor user posting the grade to a file on the server computer accessible only to the student user with which the grade is associated.

40. The method of claim 38 further comprising the steps of the instructor repeating the steps (g), (h), and (i) for a plurality of student users that are enrolled in the course.

41. The method of claim 40 further comprising the step of the instructor user performing a statistical analysis on the grades assigned to the plurality of student users.

42. The method of claim 41 further comprising the step of making results of the statistical analysis available to the student users enrolled in the course.

43. The method of claim 36 further comprising the step of providing an asynchronous communication tool accessible to student users enrolled in the course for enabling asynchronous communication amongst the student users.

44. The method of claim 36 further comprising the step of providing a synchronous communication tool accessible to student users enrolled in the course for enabling synchronous communication amongst the student users.

The entity Blackboard Inc managed to patent walks like a VLE and quacks like a VLE…

Why it’s a bad patent, and the HE e-learning community’s respons

Alfred Essa (Associate Vice Chancellor and Deputy Chief Information Officer of the Minnesota State Colleges and Universities system) considers the patent:

Old-style conquistadors used to lay claim to land on behalf of the monarch by looking yonder and chanting some such phrase: “We claim this land in the name of God and our Savior by killing everyone who already lives here. By this land we mean all the land as far as the eye can behold and way beyond also for good measure.” These days modern-day conquistadors lay claim to “intellectual property” by going to the Patent Office and chanting the modern version of the mantra: “We claim this intellectual property in the name of Innovation and our Shareholders by killing anyone who dares use that Idea for the next twenty years.” In order to qualify as a patent the idea, at least in theory, must be “non obvious” to a skilled practitioner and there must be no “prior art” (i.e. there is no record of someone else beating you to that idea).

Indeed, read Alfred Essa’s anatomy of a bogus patent including some scenarios in which Blackboard could claim patent infringement, including:

A company builds a multi-purpose Physics Simulation that also incorporates Blogs, Wikis, and RSS feeds to foster teamwork and group projects. A graduate teaching assistant (TA) has an account in the system. The teaching assistant has the ability to modify aspects of the simulation for Electricity & Magnetism, including setting up a course Wiki. The same TA, however, does not have the ability to modify any aspect for General Relativity since she is a student for that course. Blackboard can claim that this Physics simulation system infringes their patent because it’s a “network based system” which uses as a method “multiple predetermined roles”.

Another major problem with this patent is that it’s gobsmackingly parasitical. As Brian Hawkins of Educause pointed out in an open letter at the time, Blackboard has relied on ideas which have evolved and been freely exchanged in the whole e-learning community. They are not Blackboard’s ideas, and in 2006 they were well-established (there’s plenty of prior art) and hardly constituted a leap of the imagination:

There are two core tenets behind the community concern. One deals with co-creation and ownership; the other deals with innovation. Course management systems were developed by the higher education community, which includes academics, organizations, and corporations. Ideas were freely exchanged, prototypes developed, and refinements continue to be made. The new EDUCAUSE Catalyst Award, given to course management systems this year, celebrates that course management systems “were conceived and developed among faculty in pockets of innovation throughout the world. They originated simultaneously at a number of institutions,” as stated in the award announcement. One of the reasons course management systems were singled out for this award is because of the “fluid movement of ideas and initiatives between academia and the commercial sector as individual limited-use efforts evolved into enterprise-wide systems.” Our community has participated in the creation of course management systems. A claim that implies this community creation can be patented by one organization is anathema to our culture.

The other core tenet is to promote innovation. The free exchange of ideas fosters innovation. The open sharing of ideas does not preclude commercialization or profiting from ideas. Innovation is critical to the higher education community and it is critical to corporations. Blackboard has espoused the importance of listening to customers as its source of innovation. This law suit will certainly have a chilling effect on the open sharing of ideas in our community.

We believe that Blackboard should disclaim the rights established under your recently-awarded patent, placing the patent in the public domain and withdrawing the claim of infringement against Desire2Learn. We believe this action would be in the best business interests of Blackboard and in the best interests of higher education. We do not make this request lightly or underestimate the courage it will take to implement. However, we believe it is the right action for your corporation and our community.

Nevertheless, Blackboard has sued Desire2Learn for $3.1m. What next for those of us using Open Sources VLEs like Moodle, Sakai and Bodington? Well, Blackboard has condescended to make a public pledge not to go after Open Source projects:

Specifically, the Pledge commits Blackboard not to assert U.S. Patent No. 6,988,138 and many other pending patent applications against the development, use or distribution of open source software or home-grown course management systems anywhere in the world, to the extent that such systems are not bundled with proprietary software.

As part of the Pledge, Blackboard promises never to pursue patent actions against anyone using such systems including professors contributing to open source projects, open source initiatives, commercially developed open source add-on applications to proprietary products and vendors hosting and supporting open source applications. Blackboard is also extending its pledge to many specifically identified open source initiatives within the course management system space whether or not they may include proprietary elements within their applications, such as Sakai, Moodle, ATutor, Elgg and Bodington.

Commitments to limit potential patent protection are uncommon, particularly for enterprise software companies. The Patent Pledge — in terms of its sweeping scope, strong commitment and public nature — is unprecedented for a product company such as Blackboard.

But who’s convinced? Not many people – the achilles heel of this pledge is the “bundled with commercial software” part, as explained by Lev Gonick in an interview for Inside Higher Ed:

Lev Gonick, vice president and chief information officer at Case Western Reserve University, wrote on his blog Thursday that Blackboard’s pledge wouldn’t mean much over the long term because of the way technology is changing. “In a narrow sense, the threat of a frivolous lawsuit to keep lawyers employed has been avoided regarding the stand alone platform issue,” he wrote.

But he predicted that “over the next five years we are likely to see significant tension associated with this pledge” because “the history of community-based and open source initiatives is anything but a binary choice between open and proprietary systems. As so-called open source initiatives evolve over time they will continue to have proprietary pieces in their DNA and perhaps more importantly, there is a near 100 percent certainty that none of today’s open source course management systems will survive in the marketplace as autonomous offerings.”

He continued: “Whether in reaction to Blackboard’s position in the market (a defensive posture) or in attempt to preempt, there is a a significant likelihood that today’s open source solutions will evolve, over the mid-term, first as ‘open source’ course management platform strategic partners with proprietary enterprise integrated software solution providers and within a version release or two become tightly integrated into the proprietary software code. How Blackboard and the higher education community respond to that probable scenario is not a matter of if but rather when….

“Blackboard should take one more look in the mirror and realize that it is not its patents that will protect its near monopoly share of commercial course management software (full disclosure Case Western Reserve University is an enterprise customer of Blackboard) but rather its ability to demonstrate a true commitment to innovation and responsiveness to the higher education marketplace. Today’s Blackboard announcement is a short term ‘fix’ on an unfortunate journey that starts with the anti-intellectual position of seeking a ‘patent’ on a 21st century version of a ‘whiteboard and a marker’ in the 20th century or dare we say a 19th version of a ‘blackboard and chalk.’ “

Sounds like sense to me.

What can we do?

Carry on collecting and documenting prior art. Stay informed and prepared to explain the ways in which Blackboard’s acts are against education and favour only its own shareholders. Try to avoid using Blackboard. Have a look at the Software Freedom Law Centre which supports Free (i.e. Open Source) Software – more on their philosophy in this substantial ZDNet interview.

To get up to speed on Blackboard’s antics see Alfred Essa for background and Seb Schmoller for recent developments around the Texas ruling – both these blogs are good sources for keeping up with this in general.

I realise what I haven’t done here is adequately discuss the merits and drawbacks of software patenting. The idea behind them is that they foster innovation. To debunk this, look at the Free Software Foundation and its End Software Patents campaign (including 2008 Report on the State of Softpatents).

Hat tip: Stephen Downes.

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