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Blackboard Patenting Educational Groupware
chizz writes "Online learning provider Blackboard announced the other day that it has patented the Learning Management System (LMS). The very same day it went after Desire2Learn for Patent infringement in a truly Salt Lake City kinda way. A great many educators are a bit shook up by this, and are stockpiling prior art all over the place. "
Well. You can't patent something as ubiquitous as a content managment system which is what blackboard is (Sure a special type of CMS but still it's a CMS)
Ooo man the floppy drive is broken. No wait. The computer is just upside down.
The big deal is that it's going to cost a lot of money and take a lot of time. Why should Desire2Learn have to suffer because the USPO is a bunch of idiots?
Taking guns away from the 99% gives the 1% 100% of the power.
The problem is not that there are 'good' and 'bad' software patents, even if such a distinction can be made (since clearly it's a relative judgement).
The problem is that there is no mechanism that can filter the very damaging software patents from the less-damaging ones. At least, as far as experience shows in the USA and Europe, any legal definition that allows some software patents can be systematically broadened to include them all.
The only barrier to the really damaging software patents - the ones that claim ownership of an entire software ecology - is a blanket ban on the patenting of software, period. In Europe this is called the "subject matter" criteria, which is the key barrier to software patents in Europe. Prior art, triviality, and industrial application (the other criteria) are hackable to mean anything one likes. Lawyers have also been hacking the subject matter, but it's harder, since the European Patent Convention clearly does not allow patents on computer programs. (The hack usually starts by saying, "ah, but we're not patenting the program, just the underlying methods...")
The Blackboard patent looks truly obvious, but that's not enough of an argument to invalidate it. One needs to prove it was unobvious when it was filed and that your prior art can be documented to before that date as well. I've seen in patent suits in Europe that this can be very difficult, even for well-funded firms. Once granted, a relevant patent has an even chance of surviving, no matter what you throw at it. Ask Microsoft... they've been at the sharp end often enough.
Eventually, we need to see a movement to ban the patenting of software in the USA, much like this movement already exists in Europe. The alternative is to see the software ecology get more and more subverted, to the point where small-to-medium firms cannot innovate any longer, which is a bad place to be in an information economy.
To those who say, "if it's a bad patent, fight it in court", please understand that being at the receiving end of such legal instruments is tantamount to being at the end of a large gun. Small firms cannot afford lawsuits, even frivoulous ones, and it's incredible that the USPTO should have turned into an accomplice and tool of such legalized extortions.
Who stands up for the small-to-medium IT firms?
My blog
Public policy wonks love software patents because in Public Policy Wonk Happer Wonderland, systems that work on paper work in real life. What should scare legislators is that our companies have resorted to patenting so much crap like this. It means that America is getting lazy and dangerously short-sighted. I would argue that cases like this prove why America needs to introduce some danger, not protection, into its companies' environment. Danger makes people competitive and responsive to change. Security makes them complacent.
It's time to start applying the corporate death penalty to companies who abuse the system this way. Blackboard would make an excellent poster child.
While I agree to this in part, the main reason institutions go with Blackboard (or WebCT) is because the Open Source alternatives aren't up to par with features and, in most cases, don't have any contracted support that an institution can rely on. Sakai, for example, is also still an unfinished product. Who in their right mind would risk all of their online and distant learning to a system that isn't finished and lacks the level of support of a commercial product?
We've been using WebCT since '98 and continue to monitor Sakai's and Angel's progress because both products are something we are interested in, even if it's only to be used at the bargaining table with the new owner of WebCT, Blackboard.
Blackboard and WebCT are consolidating the educational "on-line" learning software market and this is VERY bad for open source. Neither of these systems is at all friendly to Linux; I have to use them as an on-line professor. They don't work with Firefox, they don't work with Konqueror. The systems themselves are terribly complex and non-intuitive.
If this sounds somewhat like a rant- I encourage you to try either of these systems. I believe you'll come away just as frustrated. The notion of these systems gaining, or even trying to gain a stranglehold is very depressing.
I hope that not only are these patents denied but that Blackboard and WebCT get tied up in litigation until they go Chapter 11. If any market should be supportive of Open Source, I think the on-line learning marketplace is a natural. Having Blackboard and WebCT dominate is not good for us.
Software patents are not patents on particular pieces of software, but on concepts. Blackboard didn't patent their or someone else's implementation of a CMS geared towards education, but the generic principle of such a CMS.
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The fact that D2L existed before Blackboard was even a gleam in the eye of its writer is 98% of the case.
As much as I'd like to believe this, 98% percent of the case is who can throw more money at it. I hope D2L is passing the hat around at the user's conference, because they are going to need a big pile of cash if they want to survive a patent-infringement suit.
I also hope that they're privately held; an infringement suit -- even a baseless one -- would be a nice way of driving the share price down low enough to make a hostile takeover feasible.
Just remember, when the RIM/NTP suit started, a lot of people said that was baseless, too. How did that end up? $680M, and the threat of injunctions? Facts are basically irrelevant in cases like this, it's the arguments that matter, and how you make them. A skilled lawyer can drag even the most lopsided, painfully obvious case out forever, in order to run the would-be winners into the ground financially.
It sounds like D2L is whistling through the graveyard; I wouldn't be so confident if I were them right now.
"Ladies and gentlemen, my killbot features Lotus Notes and a machine gun. It is the finest available."
Sounds nice, but then both parties would drag the case on for as long as they can, because they get more money that way, leaving the actual case going nowhere.
Guy asked me for a quarter for a cup of coffee. So I bit him.
Yes, but the faculty have rarely "bought into Blackboard". Instead they use it while holding their nose, cursing and screaming, or with an air of resigned hopelessness. I've NEVER met a professor/faculty member who actually LIKED blackboard.
Clemson uses it, and it really pissed off the professors when it was purchased and the perfectly usable prior interface was abandoned wholesale (developed in house, and not too bad).
Moodle needs to have (if they don't) a "BB Migration Tool" that reads the BB database and migrates all the settings and whatnot into the Moodle way.
"We don't know what we are doing, but we are doing it very carefully,..." Wherry, R.J. Personnel Psychology (1995)
CIOs aren't keen on spending money to help educate faculty, staff and the students on how to use a new product.
I found this really great software product, called moodle, with very little effort you could use it to train your faculty to use it. The point is that our present world has become insanely dynamic, and very few fields have much if any knowlege that is able to last more than 5-7 years any way; look how fast web programming blew through the Perl-PHP-Java-PHP-Python-ROR cycles. The value of educational software is nothing compared to the value of the educational content it's delivering.
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