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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. "
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.
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.