Software patent ignites firestorm in higher education

A firestorm of controversy about software vendor Blackboard's patent claims

A firestorm of controversy is spreading in the education community over attempts by key software vendor Blackboard to enforce its patent claims.

It's a case in which the level of vitriol and vilification is making the long-running and nowsettled patent battle between Research in Motion and NTP look like high tea at the Ritz. There are claims, counterclaims, a civil suit, an extraordinary demand from a higher education IT group and a mounting torrent of blog postings.

The spark ignited in late July when Blackboard , by far the dominant vendor of learning management software, announced it had been awarded a U.S. patent earlier this year for some elements of its software, the Blackboard Learning System.

The spark was fanned when Canadian rival Desire2Learn (D2L) revealed publicly that on the same day that Blackboard issued the press release, it also filed suit in U.S. District Court charging D2L with infringing that patent.

The latest legal move occurred last Monday when US federal District Court Judge Ron Clark, in the Eastern District of Texas, ruled that a Desire2Learn counterclaim could stand. D2L claims "intentional misconduct" by Blackboard officials for failing to notify the Patent Office of prior art" -- of ideas and inventions by others that could undermine the patent claims.

The next move is scheduled for early December when the two sides meet for a pretrial scheduling conference. A tentative trail date of February 2008 has been set.

Fueling passions

Passions on both sides were fueled in October, when the board of directors of EDUCAUSE, perhaps the leading nonprofit group promoting IT in higher education, voted unanimously to weigh in. "Our community feels these actions [the patent and the lawsuit] go beyond competition to challenging the core values and interests of higher education," wrote EDUCAUSE President Brian Hawkins, in a letter hand-delivered to Blackboard CEO Michael Chasen at last month's annual EDUCAUSE conference.

Hawkins was not available for comment and no one else at EDUCAUSE is authorized to speak on the matter, according to an EDUCAUSE spokesman.

In the letter, Hawkins urged the company to forgo its rights under the patent, put the patent in the public domain and drop the suit against its rival.

"We're not going to disclaim our rights under the patent," says Mathew Small, Blackboard's senior vice president and general counsel. "That would be an unprecedented and extraordinary step to take."

Some university IT officials agree.

"If I was the CEO of Blackboard and I didn't protect the company's intellectual property, the shareholders should ask me to step down," says Mitch Davis, CIO of Bowdoin College, Brunswick, Maine, and a Blackboard customer. "I don't understand what EDUCAUSE is doing or why Brian and the board decided to get involved."

Although Blackboard has not made an official response to the letter, Chasen says the company is "working with them to address those concerns."

Dueling interpretations

Many Blackboard critics interpret the wording in the patent and in Blackboard's lawsuit as evidence that the company is claiming in effect to have invented learning management systems.

"It's simply not fair competition," says Frank Lowney, director of Web-enabled resources, at the Georgia College & State University Library, a user of WebCT, a product now owned by Blackboard through an acquisition.

"Much of what Blackboard claims to have invented really came from and was freely given by the education community. Now the community is being punished through a gross lessening of competition in this market."

A flock of Web sites have sprung up in an effort by higher-education IT staff to document such prior art.

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