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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. "
I think I stopped reading shortly after that point, it would have hurt too much to continue.
"Elmo knows where you live!" - The Simpsons
of the incompetence in the US patent office. There is nothing patentable about Blackboard. It introduces nothing new to teaching, to learning, or anything. It's a horrible patent, and I hope the court finds the patent invalid. Besides, Mallard was the first online teaching environment, so UIUC should be suing Blackboard.
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.
I'm confused. What is "a truly Salt Lake City kinda way?" Patent Polygamy? A beatdown from The Mormon Stick of Justice(TM)? Eating 6 saltines in a minute?
According to the filing, the party whose bogus patent is allegedly being infringed is incorporated in Delaware and has its primary office in Washington D.C., while the alleged infringer is a Canadian company.
But the suit itself is being filed in Texas, and the suit names statutes that give the court jurisdiction.
Does this mean they chose this court because it's run by Bushies who instinctively love monoplizers and hate entrepreneurs? Or is there another reason for this choice of venue?
In a logical world, you'd expect the lawsuit to be filed where one or the other of the companies has its HQ.
I know, it's not a logical world. The USPTO proves that. But this geographical silliness is another example of the general legal ludicrosities we USians now deal with instead of having sensible laws and courts.
Fah!
- Robin
Not just the company, but the product.
When released their Blackboard 6 software caused all kinds of trouble in time lost and support at my college, to the point where a Bb rep came out to apologize to IT and the instructors. One instructor stood up and demanded that Bb make reparations for money spent in lost time.
My college also uses them for student organizations. But I'll tell you, Google Groups and independent hosting makes for a more effective solution. For one, a Blackboard cluster doesn't share session data across servers--each server maintains session data locally, which means you can't use HTML links to point to resources within Blackboard, from within Blackboard. In fact, you can't hardlink to a Blackboard resource, period.
The discussion board software is designed to be reset after every semester, which means you have to delete and recreate a Blackboard module each time, which leads to more work for instructors. The semester-centric view also makes the discussion software clunky for student organizations, which only reset once per year, if at all. I have to sift through comments dating back to September of last year before I get to recent material. Plus, there's no way to archive and search the comments.
The announcement mechanism doesn't support RSS, or even--as far as I can find--a way to send out emails automatically when announcements are created.
I could go on...I've been bending this software to my needs for a few years now.
I wish I could put my name to this, but I won't. I'm a little too paranoid for that.
Here's Martin Dougiamas' comments on this topic... he's Mr. Moodle, it seems. http://moodle.org/mod/forum/discuss.php?d=50597#23 1617 very clearly states there's no need to panic. Surprisingly, Australia and New Zealand have already allowed this patetnt, though!
If you keep throwing chairs, one day you'll break windows....
I can't imagine this isn't a long term strike against the Open Source LMSs out there. There's no real commercial competition anymore in the field with WebCT gone. Desire2Learn, Angel and the rest are ants under the feet of the Blackboard elephant, but Sakai and Moodle are getting real traction- the real buzz at EDUCAUSE isn't at the BB booth but at Sakai talks, the college just up the road dumped BB for Moodle this summer, etc.
I had a long conversation with some BB salesdroids last year and they more or less admitted that BB's long term future isn't their LMS, it's the OneCard system. They get a cut out of every purchase made with it, and it's a real cash cow.
"Seven Deadly Sins? I thought it was a to-do list!"
Aside from being slow and ugly, it is one of the buggiest pieces of software I have ever used. Whenever I go to check my grades it will say something like 10 points possible for assignment, your score 7, class average 11.2. This thing is worse than Diebold.
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.
As a Blackboard administrator this patent disturbs me. The level of support that this company provides is poor on most occasions and for them to be able to limit any choice I have to use an alternative, esp. an Open Source option like Moodle, is bad for my school. I have a feeling this patent will not stand.
then you probably could jam-through a patent for just about anything
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...in Guelph Canada. I'm typing this in a session about the new features in 8.1 :)
:)
The CEO of D2L, John Baker, wrote this LMS while a grad student enrolled at the University of Guelph in Ontario Canada. The facts scream "prior art" and Blackboard really has no case IMHO. I think the strategy here, as John put it, is to sue D2L to a point where it'd be in D2L's best interest to avoid expensive litigation and just get taken over by Blackboard. The hidden backstory here is that Blackboard wants so badly to take over D2L but D2L doesn't want any part of that. So Blackboard takes the other, more scenic route: sue them into oblivion.
I can almost guarantee that Blackboard will lose this suit. The fact that D2L existed before Blackboard was even a gleam in the eye of its writer is 98% of the case.
In any way, John was so confident about his ability to win this suit he gave us all extra drink tickets!
"This food is problematic."
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.
Most of the claims in Blackboard's patent are for concepts many LMSes had at the time (assignments, tests, lectures, grading, announcements, login, discussion area, chat). I was working with a competitive company at the time the patent was filed. The system we worked on was already in use by many colleges on the West Coast, with most of the features listed by June 30th, 2000, so most of the claims can be shown to be prior art.
This patent will not matter much. I don't see any particular reason to worry about it and here's why (IANAL!):
1. The patent relies on 44 claims, most of which can easily be shown to be prior art. (Ironically, WebCT, which was bought out by BlackBoard might be used as a counterexample of prior art).
3. To violate the Patent you would have to be substantially equivalent. Essentially this means someone would have to substantially rely on Blackboard's look and feel for providing LMS services.
4. The patent heavily relies on the concept of "files" - like our old system, which used flat files for information management (no, we did not and could not develop for the then popular (1998-1999) Sun + Oracle combo -- too big and too expensive for us and most schools at the time). An LMS using a Relational Database may be sufficiently different enough in implementation.
5. The patent differention seems to be at this part:
"The present invention also enhances the prior art by providing a flexible infrastructure for colleges, universities, and other institutions wishing to facilitate on-line registration and tuition payment. More specifically, the present invention can accommodate different billing methods, including, but not limited to, billing on a per-credit-hour basis, and billing on a per-registrant basis."
So, unless you are looking to build a Blackboard clone using a flat-file data management system including an integrated payment system, I really don't see anything to fret about.
(Disclaimer - As I said above, I am not a lawyer, and I certainly would love to see a more sophisticated legal analysis).