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Blackboard issues "Patent Pledge"

Updated 3/2/2007

On 1 February 2007 Blackboard Inc. issued a Patent Pledge in which it commits not to assert US Patent Number 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 also extends the pledge to a number of specific Open Source initiatives including Sakai, Moodle, ATutor, Elgg and Boddington.

Blackboard's media release, and its letter to the community contain supportive statements from Educause, Sakai, and the Australasian Council on Open and Distance Education, as well as from a number of individual institutions. Sakai and Educause today issue their own joint statement [44 kB PDF], distancing themselves somewhat from Blackboard. Extract:

"...... Sakai Foundation and EDUCAUSE find it difficult to give the wholehearted endorsement we had hoped might be possible. Some of Sakai's commercial partners and valued members of the open source community will not be protected under this pledge. Furthermore, EDUCAUSE and Sakai worked to gain a pledge that Blackboard would never take legal action for infringement against a college or university using another competing product. While Blackboard ultimately agrees that such actions are not in its best interest from a customer relations viewpoint, it could not agree for reasons related to its existing legal case. Our organizations will remain vigilant on this point as protecting our member institutions is of top priority."

"While this pledge offers a formalization of Blackboard's past claims about the intent of its patents, it does not speak to the quality or validity of the patents themselves. Sakai and EDUCAUSE maintain the position that Blackboard’s U.S. patent number 6,988,138 is overly broad, and that the U.S. Patent and Trademark Office (USPTO) erred in granting it to Blackboard. Furthermore, we believe that this conclusion will ultimately be decided by the re-examination of this patent through the USPTO and in the current litigation."

Certainly, the pledge represents a distinct and most definitely welcome change of course by Blackboard - though it is something that Blackboard's Chief Legal Officer Matt Small had more than hinted that the company was considering when he spoke at the Sakai conference in November 2006 [190 kB PDF].  But to my mind the pledge has the potential, firstly to leave Desire2Learn (and others) out in the cold, and secondly to draw attention away from the issues of i) software patents in general, and ii)  patents based on "prior art" developed collaboratively and openly by people based all over the world in a diverse range of public and private sector organisations. My heart is still with Educause's 26 October 2006 call 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".  3/2/2007 update. In relation to "prior art", Desire2Learn adopts quite a confident tone  in its recently released 26/1/2007 "Preliminary Invailidity Contentions" (a document submitted to the East Texas Patent Court), which is available as a 360 k B PDF from the Desire2Learn web site.

Note. Other posts about the Blackboard patent:

 

Posted on 01/02/2007 in News and comment |

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Comments

My interpretation of the EDUCAUSE et al. letter is a bit different, though it is certainly open to argument.

Although it appears that EDUCAUSE and Sakai decided to find a solution focused on its own members, my reading of this is that EDUCAUSE and Sakai are going to rely on the patent re-examination process. Perhaps they thought that to reiterate their call for Bb to drop their suit with D2L and disclaim their rights at this point would be rubbing it in their (Bb's) faces.

As far as D2L being left in the cold, they're not the only ones out there if my reading of the pledge is correct. Any home-grown CMS which has been used by more than one institution and which is not specifically listed in the pledge is still "fair game". And, since Bb retains the right to revoke the pledge, anyone (including EDUCAUSE and Sakai) is fair game is Bb chooses to change its mind IMO.

D2L is alone in the sense of being the sole target of a lawsuit at present; perhaps there's not much more that EDUCAUSE et al. could do to support them at this point, at least overtly. But I don't see Bb gaining anything positive from EDUCAUSE's announcement; all it does is stem the bleeding IMO. And I don't see D2L as being abandoned. But I guess we'll see how it actually plays out from here...

Posted by: John Sener | 01/02/2007 at 22:31

Interesting that Blackboard included Elgg in their list of open source systems that they won't sue. There is nothing in Blackboard's spurious claim that is remotely related to Elgg's functions. Elgg doesn't even have a "course" feature.

I agree that the prior art argument is so strong that Blackboard's patent is completely unsubstantiated. Hopefully the patent review will confirm this.

Thanks for this comment Harold. In relation to your second point: hope is one thing; confidence another. I doubt things will be that simple. And even if they are, it will take time. Seb - 5/2/2007.

Posted by: Harold Jarche | 04/02/2007 at 20:54

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