Blackboard pledges no action against courseware

Higher education groups remain concerned about Blackboard’s current U.S. patent and enforcement plans

In a deal worked out with higher education groups, electronic courseware vendor Blackboard Thursday promised not to enforce its against open source and homegrown software systems.

The pledge is intended to quell the anger and outrage which flared up last year after the Washington D.C. software vendor, the leader in course management software for education, announced it had been awarded U.S. patents for parts of its software. Course management applications are widely deployed in education; many are homegrown, and more recently, open source projects, such as that sponsored by the Sakai Foundation are emerging.

Blackboard, however, reserves the right to enforce its patents against commercial software rivals, and says that one company, Desire2Learn , is infringing. Desire2Learn denies the allegation, and has filed a counterclaim in the federal case, alleging "intentional misconduct" by Blackboard officials in failing to notify the U.S. Patent and Trademark Office (USPTO) of "prior art" -- ideas and inventions by others that could undermine a patent's claims. That case is scheduled to start trial a year from now.

Two key higher education groups, Educause and Sakai Foundation, who worked with Blackboard for two months on the pledge, released a carefully calibrated joint statement . Both groups had been highly and publicly critical of the original patent award and, while welcoming the pledge, they say it doesn't resolve questions about the patent's validity.

The statement said the two groups "recognize the patent pledge . . . as a step in a more positive direction for the community, to the extent that it offers some comfort to a portion of the academic community that uses open source or homegrown systems." The statement did single out for praise "the inclusion of pending patents, the clarification on the commercial support [question], customization, hosting or maintenance of open source systems, and the worldwide nature" of the pledge.

Both groups remain concerned about Blackboard's possible actions against vendors that bundle open source and proprietary code. "We remain concerned that this bundling language introduces legal and technical complexity and uncertainty which will be inhibitive in this arena of development," reads the statement.

In its own statement , Blackboard said it commits to not to assert its current U.S. patent, or any pending patents, "against the development, use or distribution of open source software or homegrown course management systems anywhere in the world, to the extent that such systems are not bundled with proprietary software." The pledge is "legally binding, irrevocable and worldwide in scope."

The pledge also covers the ecosystem of tech support, systems integration, hosting, and managed services companies that work with schools and universities, says Matthew Small, Blackboard's chief legal officer. "These companies make open source [software] more available to schools that don't have the resources for this [on their own]," he says.

Users can make use of any and all code developed by a list of open source projects, including ATutor , Bodington , Elgg , and Moodle , in addition to Sakai. They can even "mix and match whatever code they want," both proprietary and open source, without fear of infringing Blackboard patents, Small says.

Proprietary software vendors can offer open source licensed versions of their software without fear of infringement; they can even offer two versions of the product, and integrate them for a customer, and still be covered by the pledge, Small says.

But Blackboard will not permit rivals to add a few bits and pieces of open source code to their proprietary software and then claim they are protected by Blackboard's promise.

What if a rival offers a licensed commercial product that is substantially based on open source code?

"We're focused on the end license," Small says. "If the end license is open, then it's covered by the pledge. If it's partly open, and partly proprietary, it is not covered."

The pledge doesn't entirely defuse the resentments created by the patent itself.

In their joint statement, Educause and Sakai reiterated their conviction that the awarded patent is "overly broad and that the U.S. Patent and Trademark Office erred in granting it to Blackboard." That conclusion, the statement says, "will ultimately be decided by the reexamination of this patent through the USPTO and in the current litigation."

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