Blackboard sue US Patent Office

Blackboard are now suing the Director of the US Patent and Trademark Office, John W. Dudas, to block the re-examination of their learning management systems patent. From the Desire2Learn patent blog:

"Because of time restraints (not to mention the uninteresting nature of the filings), we've not posted the underlying documents, but Blackboard a few months ago renewed its efforts to suspend the reexamination of their Patent at the PTO. Of course, we opposed it, and on November 17, the PTO denied Blackboard's efforts. (We will post the documents, but it may take some time – as for now, they're available on the Patent & Trademark Office website). Remember, this is the 2nd time Blackboard tried to suspend the re-examination --- yes this is in fact the exact same one that Blackboard previously claimed that it welcomed. (Update: on the May 30 posting, we included a link to Blackboard's website. That link is now a "page not found" on Blackboard's site, but you can still find it on Inmagic's site (thanks, Jim Farmer). Blackboard's document stated, in part: "[W]e remain very confident in the validity of our patent and that the Patent Office will agree . . ." Guess they changed their mind.)

A new development: Blackboard has taken its attempts to stop the reexam to another level. It has now sued the Patent and Trademark Office, asking the Court for a ruling that the PTO's refusal to suspend or terminate the reexam was improper. Blackboard filed its case in the U.S. District Court for the Eastern District of Virginia, where the PTO is located. The Complaint makes for an interesting read, and has at least one surprising omission: Blackboard somehow forgot to mention that on March 25, in a non-final action, the PTO rejected each of the 44 claims of the patent.

Desire2Learn isn't a party to Blackboard's latest litigation, but we'll continue to monitor it and keep you posted."

The basic argument in the suit is that once the court decided someone had breached the patent, the Patent Office no longer have any legitimate right to re-examine it:

"Cause of Action
The Director's Decision Is Contrary to Law.
21. Blackboard incorporates by reference all preceding paragraphs as if set forth
herein.
22. The Decision constitutes a final agency action within the meaning of 5 U.S.C
§ 704.
23. The Texas district court entered final judgment against Desire2Leam on its
counterclaims of invalidity of claims 36, 37, and 38 of the '138 patent. The final judgment
constitutes a "final decision ... in a civil action arising in whole or in part under section 1338 of.
title 28" under 35 U.S.C. ~ 317(b). Consequently, the final judgment prevents the PTO from
maintaining an inter partes reexamination requested by Desire2Learn of those claims.
22. The holding of the Decision that inter partes reexamination of claims 36, 37, and
38 of the '138 patent may be maintained notwithstanding the final judgment entered by the
Texas district court is contrary to law and is arbitrary and capricious and an abuse of discretion
under 5 U.S.C. § 706(2)(a)."

The natural conclusion of such an position is that if you can manage to keep prior art secret long enough to get a court judgment, then it doesn't matter that the patent was originally invalid, it will still stand. I can't imagine that's a sustainable legal argument. Desire2Learn are also technically correct that the Blackboard court brief fails to mention the Patent Office's preliminary invalidation of the patent on the 25th of March 2008. Given that the judge in the patent trial didn't enter the 'final judgment' in the case until the 7th of May 2008, there may be technical room for manoeuvre for patent office lawyers, even if the dodgy premises of Blackboard case did have some basis in law. After all the patent was declared invalid before the final judgment.

Blackboard want the court to declare the patent re-examination unlawful, an order terminating the re-examination of the patent and banning the Patent Office from re-examining it, and a declaration that the court case that went in their favour is the 'final decision' in the matter.

"Blackboard requests the following relief:
a. An order holding unlawful and setting aside the Director's Decision;
b. An order enjoining the PTO from maintaining an inter partes reexamination of
claims 36, 37, and 38 requested by Desire2Leam and directing the Director to terminate the
pending inter partes reexamination of claims 36, 37, and 38;
c. A declaratory judgment that the final judgment of the Texas district court is a
"final decision" for purposes of 35 U.S.C. § 317(b); and
d. All other such relief as this Court may deem necessary and just."

Naturally.

Jury decide in favour of Blackboard

At the end of last week a federal jury awarded Blackboard $3.1 million in damages against competitor Desire2Learn for patent infringement. This is a bit of a surprise since two federal judges gave preliminary rulings in August 2007 invalidating most of Blackboard's patent.

Desire2Learn has posted a copy of the judge's instructions to the jury. Well worth a read.

Michael Feldstein, one of the bloggers following the case most closely, has posted an eye-witness account of the trial by Jim Farmer of Georgetown University. Also well worth reading in full.

From the Chronicle:

"A federal jury in Texas awarded Blackboard Inc. $3.1-million on Friday, saying that a smaller Canadian competitor, Desire2Learn Inc., had infringed its patent for a system of delivering course materials online. The jury also found that Desire2Learn had not shown clear and convincing evidence that Blackboard's patent was invalid.

Blackboard's general counsel, Matthew Small, said the verdict validated the company's assertion, which has been challenged by many higher-education technology experts, that its system was unique when the U.S. Patent and Trademark Office granted Blackboard the patent in 2006. The office agreed last year to take another look at the patent after Desire2Learn and others challenged its validity. That review is still pending.

"They won this round, but the battle is not over by any stretch of the imagination," John Baker, president and chief executive of Desire2Learn, said in an interview Friday. "We'll continue to fight and hopefully remove from the educational community this very dark cloud."

The company is considering several options, including appealing the verdict, continuing to challenge the patent at the federal level, and modifying its software so it does not infringe Blackboard's patent.

Mr. Baker said he was "shocked" when the jury announced its decision after deliberating for nine hours over two days in the U.S. District Court in Lufkin. The trial lasted two weeks...
Eben Moglen is founding director and chairman of the Software Freedom Law Center, an advocacy group for open-source software that has challenged Blackboard's patent. Mr. Moglen, who is also a professor of law at Columbia University, said there is plenty of evidence, presented both in the trial, and to the federal patent office, of similar technology that existed before Blackboard's patent was issued. He added that his group plans to continue fighting to invalidate Blackboard's patent...

Peter A. Schilling, director of information technology at Amherst College, said colleges may decide it's too risky to use any course-management system other than Blackboard's. The patent, he said, is so broadly written that professors may be afraid to even use wikis or blogs."

USPTO reject Blackboard patents

The US Patent and Trademark Office has reportedly issued a preliminary ruling rejecting Blackboard's patent on delivering courses via the Net. The Chronicle says:

"The U.S. Patent and Trademark Office has issued a preliminary decision that rejects all 44 claims Blackboard Inc. made regarding the controversial patent it was granted for an online-learning system. If upheld, the decision could have sweeping ramifications for Blackboard's competitors and universities that use course-management software."

The ruling itself is available at Desire2Learn who are pleased:

"On March 25, the U.S. Patent & Trademark Office issued its Non-Final Action on the re-examination of the Blackboard Patent. We are studying the document, found here, but in short, the PTO has rejected all 44 of Blackboard's claims. We caution that this is a NON-final action; both Blackboard and Desire2Learn will have an opportunity to comment before a final action will issue, and after that, the decision will be subject to appeals.

However, we're still pleased."

Blackboard have responded to the ruling and are not so pleased but suggest it doesn't change anything:

"Today, the United States Patent and Trademark Office issued a first Office Action in the reexamination proceeding regarding Blackboard’s U.S. Patent 6,988,138 ("the'138 Patent"). This Office Action was expected and is the first step in a reexamination process that often takes years to complete. It has no effect on the validity of the patent, the lawsuit between Blackboard and Desire2Learn or the pending injunction against Desire2Learn that will go into effect on May 10th, 2008, precluding ongoing sale or use of their Learning Environment products and services...

Blackboard will now have two months to respond to each of the Patent Office’s questions, all of which were unsuccessfully raised by Desire2Learn in the recent litigation.

With that in mind, and given that more than 90% of patents that undergo reexamination of this kind ultimately are upheld, we remain very confident in the validity of our patent and that the Patent Office will agree with the ruling in Federal Court last month. While the reexamination process moves forward, the issued patent will remain both valid and enforceable."

The USPTO's decision and the reactions were relatively predictable and Desite2Learn are right to urge caution, as are Blackboard to point out it is only one step in a long process. So it is a case of keep watching on this one I'm afraid. Ultimately, though, the patent is unlikely to withstand detailed, robust, prolonged and rational scrutiny. Unfortunately, in the meantime, the damaging adjective in that list is "prolonged".

Blackboard offer peace treaty to open source community

Blackboard, it seems, have recognised the damage to their image they have done by patenting elearning.

"Facing sharp criticism from academic computing experts, Blackboard Inc. announced Thursday what it calls a legally binding promise that it won't pursue patent lawsuits against users of open-source online classroom technology.

An open-source group said it welcomed the move but noted a key caveat: It covers a number of named open-source projects, but technically leaves open the possibility future open-source initiatives that bundle proprietary software could be vulnerable...

Blackboard denied it would sue academic users but will now make that commitment more formal, with a worldwide agreement that the company's chief legal officer, Matthew Small, said could be used in court against the company if it ever pursued such an action."

Oh dear. The solution to the lawyerly problems is more lawyers. From the BlackBoard site:

"In summary, the Blackboard Patent Pledge is a promise by the company to never assert its issued or pending course management system software patents against open source software or home-grown course management systems. The Blackboard Pledge is legally binding, irrevocable and worldwide in scope.

"As a member of the e-Learning community, we are committed to the open exchange of ideas, collaboration and innovation," said Michael Chasen, president and chief executive officer of Blackboard. "This pledge is part of that commitment and our continued efforts to work collaboratively with the e- Learning community to foster greater openness and interoperability."

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...

The Blackboard Patent Pledge along with many Frequently Asked Questions can be found at http://www.blackboard.com/patent."

The BlackBoard patent pledge is here.

Blackboard stategies

Michael Feldstein has had the chance to look at some of Blackboard's latest developments and talk to some of their key people.

"A few weeks back, I got an invitation from Matt Small to get a tour of Blackboard NG. Given all the rumors and speculation around it, I was obviously interested. I particularly wanted to know how much of it exists in code today and how much is vapor. So I took Matt up on his offer, and got a tour from him and John Fontaine. And while I didn’t quite get a full answer to the vaporware question, I did learn a lot of other interesting stuff about the platform and Blackboard’s strategy...

The NG strategy has both defensive and offensive components to it. On the defensive side, it is intended to fix what even Blackboard acknowledges is a clunky user experience in their current-generation product. As anyone who has taught with Blackboard knows, it takes about 57 clicks to do just about anything. One of the first things that John and Matt highlighted in NG is that the page authoring system should be a big improvement over the current design. On their way to doing this, Blackboard is also adding a more modern iGoogle-like drag-and-drop environment and beefing up their accessibility...

Blackboard is using its size and financial characteristics as a weapon against both smaller proprietary competitors and open source alternatives. This came up repeatedly in different ways throughout the conversation...

Michael Chasen has repeatedly characterised Sakai and Moodle (the latter of which he consistently avoids mentioning by name) as departmental choices. This message is reinforced by Blackboard’s pitch about being an “enterprise software company.” Put all of this together, and the message to unversities is, “You don’t want to trust your mission-critical system to some flakey open source group. Buy your enterprise software from us. If you need to placate some users on your campus, let them run Sakai or Moodle at the departmental level and have them manage their courses through Blackboard. Over time, you’ll be able to wean them off of those toys and get them onto a big boy LMS.” Neither John nor Matt said it directly, but my sense is that this strategy applies specifically and only to open source. They seem to believe that they have Desire2Learn and ANGEL well in hand and don’t need this containment strategy for them."

Desire2Learn win a round in the Blackboard patent re-examination

It seems Desire2Learn has won the latest round in the dispute over Blackboard's ridiculous patent.

"As we reported on May 30, 2008, and contrary to its prior statements welcoming reexamination, Blackboard petitioned the U.S. Patent & Trademark Office (PTO) to suspend the reexamination of its patent. We responded to that Petition on June 19, and posted it here on June 20, 2008. Blackboard subsequently attempted to file a Reply to our Response, which we inadvertently omitted from this blog, but is now posted here. (As noted below, the PTO rejected Blackboard's Reply.)

On August 22, 2008, we learned that the PTO dismissed Blackboard's Petition to Suspend, rejecting each of Blackboard's arguments. The reexamination will proceed. In addition, the PTO rejected Blackboard's attempted filing of its Reply, noting that the paper was an improper paper; the PTO also expunged the paper from its files.

Where we stand now at the PTO: On March 28, 2008, we announced that the PTO had rejected each of the 44 claims in a non-final action; Blackboard responded to this rejection, which we posted on May 28, 2008 and June 6, 2008 (exhibits); we posted our "Comments" to Blackboard's response on June 27, 2008.

We look forward to the next step in the reexamination process."

Blackboard court setback

Blackboard and Desire2Learn have been back in court. The former asked for the latter to be held in contempt because the changes to its software to comply with the court's previous order to that effect are not to Blackboard's liking.

Desire2Learn say:

"We just received word from Texas. The Court denied Blackboard's Motion for Contempt. We anticipate we will receive the Court's written Order in a few days and will post it when we receive it."

Think about this ridiculous litigation for a minute. Blackboard get a nonsensical patent and immediately sue their biggest (though comparatively very small) competitor, Desire2Learn. The case goes through the Eastern District Court in Lufkin in Texas, (bearing in mind Blackboard's headquarters is in Washington DC and Desire2Learn is a Canadian company, the obvious place for a lawsuit is Texas), and a jury awards millions in damages for patent infringement.

Then the US Patent Office, having reviewed the patent, issues a preliminary ruling declaring it invalid. This, however, has no impact on the court case. The losers still have to pay damages and the judge, with little room for manoeuvre following the jury decision, orders them to change their software so that it doesn't infringe Blackboard's patent. Desire2Learn comply within the few weeks the judge has given them, updating the software and their customer base installations, since the judge has said the old infringing software can't be sold or used.

Blackboard are not happy that the changes go far enough and go back to court demanding their competitor gets held in contempt for not changing their product enough so that it no longer infringes a patent which has been formally declared invalid. And they can get away with it because the invalidation of the patent can't be taken into consideration in court until the process within the Patent Office has been exhausted through all possible appeals.

It will be really interesting to read what the judge has had to say about the latest action when his ruling becomes available. At best it's possible the judge has decided that the latest version of Desire2Learn's software can't be shown to be infringing Blackboard's invalid patent, in which case Blackboard would have to start a new patent infringement suit from scratch to take it down. At worst it could just be a procedural delay. We'll just have to wait for the details.

All change at Blackboard?

In mid May Blackboard appointed Ray Henderson as the new President of the Blackboard Learn division, one of the most respected people in the ed tech field and someone totally committed to openness. At the time Michael Feldstein set down three tests for the new Blackboard as an indicator of whether Henderson's appointment did mean real change in the company.

"The first thing I will be looking for Blackboard to do is to drop the patent suit...

The second sign I will be looking for that Blackboard is learning from Ray and the ANGEL team is that they implement IMS Common Cartridge—including export—in the main Bb Learn product. Open educational resources is a coming (albeit slow) revolution in education. Enabling teachers to export content in an open, sharable format will enable the LMS (including Blackboard’s) to become a platform that facilitates this revolution. An enlightened businessperson would understand that being viewed by your customers as a facilitator of positive industry change is worth the risk of making it a little easier for customers to leave your product. This is probably one reason why ANGEL, under Ray’s leadership, became the first platform in the industry to support Common Cartridge import and export. Blackboard, on the other hand, does not make open content export easy...

The third test of whether whether Blackboard is serious about learning to be more open is whether they implement IMS LIS across all their LMS products. This is actually an area where neither company has delivered the goods yet (although, to be fair, both have publicly committed to doing so). LIS will make customers able to get higher quaility integration between LMS and SIS at lower cost. It will enable them to pay less to vendors in consulting fees and be more able to migrate from one platform to another."

It's too early to tell yet (at least from the outside) whether he's made any difference but interestingly enough Ray Henderson has just started a blog, another I'll be adding to my newsreader.

Blackboard say they will not sue universities

The Association for Learning Technology folks have had a teleconference with Blackboard about the concerns raised by their patent litigation. Blackboard's General Legal Counsel told the ALT that the key independent claims in the patent are numbers 1 and 36:

"Each of the other 44 claims (that is, the dependent claims) are dependent upon claims 1 and/or 36 and/or others of the dependent claims. The overall invention described in the patent draws upon a large number of elements, and it is only claims 1 and 36 that Blackboard asserts, through the patent, that it invented as stand alone inventions. The remaining claims relate to features that, as stand alone elements, might have already been invented elsewhere. Blackboard indicated that people who think the patent is a statement by Blackboard that it had itself invented what is described in each of the 44 claims as stand-alone elements are understandably offended. But the fact is that it is only claims 1 and 36 that Blackboard believes it invented as stand-alone inventions, and it is only infringement of these two independent claims that would result in Blackboard being able to obtain redress."

He also said the company has no plans to sue individual universities or undermine open source projects:

"We have a stated business policy of not going after individual universities, nor are we focusing on Open Source initiatives."

Whereas universties including my own can take some comfort from this, stated business policies do tend to change over time. As to the inventions claimed in items 1 and 36, item 1, when translated from the legalese basically says Blackboard have a patent on:

Any system of online courses which can be accessed via different computers by different users. Those people can be students, instructors or system administrators. The courses sit on a computer server and the kind of access a user gets to one or more courses depends on whether they are a student, teacher or administrator.

Item 36 when translated means:

A community of users can use the system. Each user can have various different roles (student, instructor or administrator) and access privileges based on these roles. Courses can be put on a server and users given the requisite degree of access.

I remain unconvinced that either of these central claims meets the "new" or "inventive step" requirements needed to be patentable.

Thanks to Ley for the ALT pointer.

Blackboard tactics

From Michael Feldstein:

"Blackboard apparently sponsored a spy to go to the D2L user conference and report back on the events and even had an employee pose as a university employee (with a fake email address) to gain competitive information...

Also, Blackboard’s communications with its PR firm apparently say that, while the public story around the patent is that they are protecting their intellectual property, the “real” purpose was to “contain and control” D2L. So the goal is to distract the #2 vendor in the LMS space with a costly lawsuit. Not only has Blackboard known all along that their lawsuit could damage competition in the LMS space (as I and others have argued); they explicitly intended to damage competition, as the court documents apparently show. Judging by the amount of traffic I saw at the D2L booth this week here at EDUCAUSE, it looks like they failed...

D2L is preparing to file for a summary judgment, which is not surprising given that they have already gotten two thirds of the patent claims ruled invalid by two different judges. Sadly, since Blackboard’s motive is apparently to cost D2L as much money as possible regardless of their chances of winning in court, it seems virtually certain that Blackboard would file an appeal if they lose."

Desire2Learn apparently posted details of the Blackboard behaviour on their website - further details of which Feldstein says would cause a certain queasiness - and then got a threat from Blackboard's lawyers, so took down the post rather than get involved in more protracted legal wrangling over that as well.

Blackboard and WebCT to merge

The two biggest electronic learning platform vendors for higher education have agreed on a merger/takeover deal. Blackboard are to acquire WebCT by early 2006 in a deal that will give the new company about two thirds of the world market in learning management system (LMS) or virtual learning environments (VLEs), as we have come to call them in the university sector.

This gives me some concern, not because my own university uses either of these platforms (we don't yet), but because Blackboard have demonstrated a will to censor inconvenient research. In the Spring of 2003 they rolled out the lawyers to prevent two students presenting a research paper on security flaws in the Blackboard campus ID card system.

The two, Billy Hoffman of the Georgia Institute of Technology and Virgil Griffith of the University of Alabama had decided to publish a paper on the problem at a security conference in Georgia but Blackboard’s lawyers stepped in and got a court to issue an injunction preventing the disclosure of the details of the problem.

The students eventually reached an out of court settlement with Blackboard apologising to the company for their actions and agreeing to "refrain from any further unauthorized access to or use of the System," including "any transaction designed to better understand or determine how the System works." They also agreed to do 40 hours community service.

Now Blackboard got their injunction preventing these students from presenting their research, so they had an arguable legal case. However, the builders of one of the widest deployed platforms for the creation and delivery of higher education digital content were prepared to go to court to block the publication of inconvenient research and extract a settlement whereby a couple of techie students agreed to refrain from “any transaction designed to better understand or determine how the System works."

Blackboard is a business and has a duty to protect the interests of the company’s shareholders. These interests, however, may not necessarily coincide with those of their education institution customers.

So, universities should think carefully before locking themselves into propriety VLEs. The corollary of that is that the architecture of higher education VLEs should be:

• based on open standards
• modular
• flexible
• expansible
• interoperable with other systems

If a small number of players with closed systems come to dominate the HE market for VLEs in the long term we could face restrictions on information development and distribution which we take for granted today. Restrictions built into the architecture of the systems we use, backed up by force of law.

Blackboard patent litigation rouses the elearning community

Well at least the open and e-learning* communities have been getting worked up about the Blackboard patent litigation, even if no one else has. Here's a sample from Stephen Downes and Alex Reid. Reid says:

"With any luck this ridiculous claim will fall flat, meanwhile a few observations on why this was a bad idea, even from their own perspective.

1. Though increasing numbers of faculty may be entering the area of online education, the practice is still heavily reliant upon a small number of faculty. They are the early adopters who then turn around and evangelize for technology, encourage campus support for new technologies, and support other faculty in taking that first step. On my campus, you'd be talking about a dozen or so faculty. Our campus has used Web CT (bought up by Blackboard last year).

Why would I, or any of these faculty, invest our time in learning or developing practices within a strictly proprietary environment that is wholly counter not only to the principles of academic freedom but also to the potential of global communication. After all, this is roughly analogous to giving some publisher a patent for textbooks!

2. Technology education is currently a field of scholarly investigation. Developments in online pedagogy rely upon such research. This far-reaching patent would essentially put an end to any research in online pedagogy. Why research new cooking recipes when you'll be sued if you make anything but a Big Mac?

3. There may be a lot of money to be made in the area of online education, but not by teachers. It may be the case that many faculty are unaware of Blackboard's patent claims or haven't thought through the implications. However, when this situation is properly presented as an infringement on academic freedom, I think there will be a significant response. Specifically, it is difficult, if not impossible in most cases, to require faculty to teach online. If the choice is between Blackboard and not being online then we must not offer online courses.

However, I do not think we need to make this choice. Instead, perhaps Blackboard's patent is the evil impetus to move us away from a "course-based system" of "online courses:" the bad idea that they want to claim as their fundamental intellectual property.

What happens if I establish a wiki, not associated with any particular course or even necessarily with my college? I let anyone create an account and participate on the wiki. I might post material on the wiki and require my students to read it, just as I might ask students to read material on other websites. I might require students to add to the wiki. But it wouldn't be a course-based wiki. That is, it wouldn't be created for a course. It wouldn't start and end with the course. The participants on the wiki would not be limited to students registered in the course. It wouldn't even be limited to members of the college community.

Similarly, I have this blog. I use it for a number of purposes that have no direct relation to the courses I teach. I've been running it for a couple years now. If I invite my students to post here, does it suddenly become a course-based website. I don't think so.

This is the direction in which we need to head anyway, away from the "course-centric" philosophy of "management" systems. Indeed the whole notion of courses and course-credit is atavistic anyway, left over from a time when formal learning was restricted to limited times and spaces. Yes, I suppose we are still in that "time," but we are also one foot out from under it.

In my view, the very fact that Blackboard's claim begins and ends on the notion of the course is testament to their lack of vision and innovative thinking. Unfortunately higher education has long demonstrated an equal inability to innovate, but perhaps it doesn't have to stay that way."

Well said.

*Just as a matter of interest, I don't believe there is any such thing as 'e-learning', any more than there is e-commerce, e-government or e-anything else. e-anything is just the activity supported, facilitated or complimented by new technologies. What's really important for education is open learning, whatever format or vessel facilitates it. The Blackboard patent, in spite of the pedagogic strait jacket the architecture and thinking imposes, is still bad news, in my opinion, for open learning.

Blackboard sues for patent infringement

Education systems supplier, Blackboard, having recently been granted a broad patent (no. 6,988,138) in the US on technology used for "internet-based education support systems and methods" didn't let any grass grow under its feet before suing Desire2Learn Inc for allegedly infringing said patent. The patent has also been passed in Australia, New Zealand and Singapore and is pending in the EU and various other parts of the world.

Excuse my foaming at the mouth about this but the patent is nonsense on stilts and generically could be interpreted to describe what we have been doing here at the Open University for at least a generation and certainly for the 11 years that I've been here. I suspect Centrinity's FirstClass will be on Blackboard's lawyers' list of targets as well as the open source Moodle system the OU are adopting.

Well, if it takes this kind of patent litigation to wake the education sector (I emphatically reject the notion that universities constitute an "industry") up to the damage that can be done by an imbalance in the intellectual property system then maybe it will serve some useful purpose. The experience could well be painful. Remember Blackboard are the company that sued two technology students, under computer hacking and intellectual property laws, for daring to understand their technology and trying to present a paper on it at a security conference. From Chapter 2 of my forthcoming book, Back to the Future: Digital Decision Making:

"In 2003, two students decided to publish a research paper on an electronic security problem. The two, Billy Hoffman of the Georgia Institute of Technology and Virgil Griffith of the University of Alabama had discovered a security hole in Blackboard’s university ID card system. They decided to publish a paper on the problem at a security conference in Georgia but Blackboard’s lawyers stepped in wielding the DMCA, trademark and computer hacking laws and got a court to issue an injunction preventing the disclosure of the details of the problem.

The students eventually reached an out of court settlement with Blackboard apologising to the company for their actions and agreeing to "refrain from any further unauthorized access to or use of the System," including "any transaction designed to better understand or determine how the System works." "

Jennifer Jenkins of Duke University has a terrific write up of the case at the Chilling Effects Clearinghouse.

Open University turn to Blackboard Collaborate

After a long and complex tendering process, in line with the EU guidelines on public procurement, The Open University has chosen Blackboard Collaborate as its new synchronous online learning platform.

The OU has been using Elluminate since 2008.  Blackboard bought out Eluminate and its main competitor Wimba in 2010. Collaborate appears to be a combination of the slightly less cluttered interface of Wimba and the greater functionality of Eluminate.

The plan is for a phased implementation/transition to Blackboard Collaborate with our use of Eluminate finishing in the summer of 2014. Collaborate, from the demos I've seen, seems relatively straightforward to use and resources developed for use on Eluminate are reported to be seamlessly interoperable with the new platform.

Associate lecturers and students won't be expected to switch platforms midstream.  The idea is that Blackboard Collaborate will be introduced between the end of one presentation of a course/module and the begining of the next.

The significant operational change from my perspective is not the specific tools which are, in effect, quite similar but that the hosting will be done externally by Blackboard, on servers within the EU, rather than internally by the OU on servers in the UK.

Blackboard are a US multinational but with the hosting firmly within EU borders the data will be subject to the more stringent EU privacy protections. It does mean, however, that the ongoing EU-US free trade agreement negotiations take on a sharper meaning for the Open University than they historically might have done, given the long time efforts of the US to dilute the EU's privacy regime.

Librarian skills

Jenny Levine's been thinking about the 20 Technology Skills Every Educator Should Have and believes librarians should be equally steeped in these crafts.

" 1. Word Processing Skills
2. Spreadsheets Skills
3. Database Skills
4. Electronic Presentation Skills
5. Web Navigation Skills
6. Web Site Design Skills
7. E-Mail Management Skills
8. Digital Cameras
9. Computer Network Knowledge Applicable to your School System
10. File Management & Windows Explorer Skills
11. Downloading Software From the Web (Knowledge including eBooks)
12. Installing Computer Software onto a Computer System
13. WebCT or Blackboard Teaching Skills
14. Videoconferencing skills
15. Computer-Related Storage Devices (Knowledge: disks, CDs, USB drives, zip disks, DVDs, etc.)
16. Scanner Knowledge
17. Knowledge of PDAs
18. Deep Web Knowledge
19. Educational Copyright Knowledge
20. Computer Security Knowledge

It's a pretty good list, and it becomes useful for us if we substitute the word "librarian" for "educator" throughout, even for items like #13 about WebCT and Blackboard because you have to understand the distance learning you'll be supporting more and more in the future (speaking from a public librarian perspective)."

I agree item 13. should be on the librarian list but I'd prefer the term "virtual learning environments (or VLEs)" instead of "WebCT or Blackboard", which, after all are only proprietary systems. We've been working with evolving VLEs on an industrial scale for about 10 years at the Open University in the UK and we don't use either WebCT or Blackboard.

Blackboard also felt it necessary to get a restraining order preventing students revealing security vunerablilities in their systems in April 2003, in order to prevent "irreparable injury to Blackboard" and their intellectual property rights. The court granted the injunction, so the company had a presentable legal case. There is a legimate question, however, about the degree of control that companies who build digital education systems should exercise over the information that flows through or about those systems.

My own preference is for VLEs to be open, modular, flexible and interoperable.

Patent Office Orders Re-Examination of Blackboard Patent

Pamela Jones and the Software Freedom Center (which made the formal request) report that BlackBoard's patent on elearning systems is being re-examined by the United States Patent and Trademark Office (USPTO).

"In response to a formal request filed by the Software Freedom Law Center (SFLC), the United States Patent and Trademark Office (USPTO) today ordered re-examination of the e-learning patent owned by Blackboard Inc.

SFLC, provider of pro-bono legal services to protect and advance Free and Open Source Software, had filed the request in November on behalf of Sakai, Moodle, and ATutor, three open source educational software projects. The Patent Office found that prior art cited in SFLC's request raises "a substantial new question of patentability" regarding all 44 claims of Blackboard's patent."

That's good news in my book and ther eis a good chance the US will now quash the indefensible patent on prior art grounds but remember it is not just in the US that BlackBoard have succeeded in securing this patent. Australia, New Zealand and Singapore have granted the patent and it is pending in the EU and various other parts of the world.

That Blackboard decision again

Martin is as close as I've seen him to angry in his writing about the jury deciding in favour of Blackboard.

"

It strikes me there are three ways to be the market leader in an industry:

i) Have such cool products it doesn't matter how you behave (cf. Apple)

ii) Have an average product and bully everyone else out of the market so the customer has no choice (cf. Microsoft)

iii) Work with your customers to develop your product and get good will (cf. nearly every other tech company).

I don't have an MBA, but it strikes me that option i) is damn hard to pull off and happens to only one or two products in a decade. Option ii) is so old school, industrial type thinking that even Microsoft are shying away from it now. This is particularly true in a sector like education. Unlike, washing machines say, people really care about education. You can't bully them, treat them with contempt and work against the community and expect to have the market. People are too smart and will work around you. Which leaves option iii) as your only sensible option. And the BB patent is about as far as you can get from this as is imaginable.

So when universities find ways to deliver, support, facilitate learning online (for instance using a set of third party apps held together by eduglu), are BB going to sue them? And will they sue every application in the pack? Google Calendar when used in a loosely coupled learning suite is now in infringement of copyright?

You have to say that when it comes to misunderstanding your market, the BB patent will be a classic case study. Until we have the opportunity to look back and laugh however, we should make sure we do everything to boycott them."

Whilst I share Martin's sentments, I don't agree that you can't bully and treat educational institutions with contempt and still expect to have a market. Blackboard and many other systems suppliers are locked into educational and other institutions; and in universities, as elsewhere, the people and processes charged with making decisions about such things are not always the most rational in the world. In addition, given the avoid-litigation-at-all-costs mentality in the education sector generally, Blackboard's court win, I fear, could do more long term damage than I would like to see.

Blackboard lose another round

Also from the Chronicle, in the latest preliminary ruling from the US patent office Blackboard has lost again. Desire2Learn are quietly pleased.

"Last week the U.S. Patent and Trademark Office issued a preliminary ruling rejecting all 57 claims in a software patent that Blackboard Inc. used to successfully sue rival Desire2Learn for infringement. But the long-running patent battle between the two providers of course-management software is far from over, and the re-examination process could drag on for years because of the many chances that Blackboard has to appeal."

This one has a long way to run yet but its pleasing to see another step in the right direction.

What BlackBoard's patent tells you about them

Martin has been giving a keynote address outlining his concerns about BlackBoard's patent at a conference of BlackBoard users.

"I talked about web 2.0 and some of the usual VLE topics I have covered (succession, metaphors, future directions, etc). From a BB audience perspective the key slide was one that focused on the patent where I played the YouTube movie on software patents, gave some of Michael Feldstein’s interpretations of the patent, and linked it back to the succession model. The Blackboard company representatives in the audience looked a little unhappy with this, although slightly battle weary too – I suspect they are getting tired of talking about it. In the questions someone asked me about other patents and I outlined some of their dangers and why I considered them an ‘educational menace’. So, it was a good audience to raise that topic in (in many ways better than preaching to the converted at an open source conference, say). I think it is also another example of why it is such a dumb move on BB’s part. Without the patent I wouldn’t have said anything bad about them, I had a lot of time for them. What the patent does is effectively polarise users, forcing them in to mutually opposing camps. It has made me much more of an advocate of open source for example, and that reaction manifested across many HE institutions will ultimately do a good deal of harm to BB."

Software Freedom Law Center challenge Blackboard Patent

The Software Freedom Law Center set up by Eben Moglen has challenged the Blackboard patent on elearning systems, asking the US Patent Office to re-examine it with a view to invalidating it. Moglen's group are concerned at the potential impact of the patent on open source projects like Moodle, despite the fact that Blackboard have said they have no intention of targetting such initiatives for legal action.

Regular readers will know I believe that the Blackboard patent should never have been granted.