In response to a challenge from a free and open software group, the U.S. Patent and Trademark Office has agreed to re-examine all 44 claims of a patent that covers e-learning tools.
Patent No. 6,988,138, awarded last year to the academic technology company Blackboard, is titled "Internet-based education support system and methods." It involves the ability to grant different people, such as students and teachers, different access rights to online resources such as grades, files or quizzes.
In November, the Software Freedom Law Center, a New York-based provider of pro-bono legal services to the free and open software movement, asked the Patent Office to rethink the patent grant. In order for an invention to receive patent protection, it's supposed to be novel, useful and non-obvious. The SFLC argues the Blackboard patent doesn't meet that standard and has offered "prior art," or evidence that the invention has been used before.
The Patent Office said in its re-examination order (PDF) that the prior art raises "a substantial new question of patentability."
SFLC attorney Richard Fontana, who filed the re-examination request, said in a statement that the group filed the request "to help free software developers create and distribute their original software without having to fear being sued over this patent, a patent that should never have been awarded in the first place."
Blackboard reportedly sued rival Desire2Learn the day after it received its patent. The SFLC filed its request on behalf of Sakai, Moodle and ATutor, three open source educational software programs.
Re-examination requests of this nature typically take two years to complete, the SFLC said, and 70 percent result in patents being narrowed or invalidated. Blackboard has maintained it is confident the patent is valid.