February 1, 2007 12:56 PM PST

Education software firm OKs open-source patent use

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Blackboard, whose software can be used to manage university courses, has taken a significant step to mollify open-source rivals who perceive a patent threat from the company.

Blackboard pledged Thursday not to use its current and pending patents against open-source alternatives. The pledge also extends to in-house "home grown" course management software developed by schools themselves, software that handles chores such as tracking grades or distributing quizzes.

"From day 1, Blackboard has stated that it's not focusing its intellectual-property enforcement efforts on schools and the open-source community. Today we're putting it in writing," said Matthew Small, chief legal officer of the Washington, D.C.-based company.

Blackboard's move drew the qualified praise of one open-source rival, Sakai, and of Educause, a group promoting the use of computing technology in education. In particular, the two praised Blackboard's inclusion of pending patents, which had been a sticking point in discussions about the issue.

But overall, the groups stopped far short of endorsing Blackboard's move. "Although Blackboard has included in the pledge many named open-source initiatives, regardless of whether they incorporate proprietary elements in their applications, Blackboard has also reserved rights to assert its patents against other providers of such systems that are 'bundled' with proprietary code," the groups said in a statement. "We remain concerned that this bundling language introduces legal and technical complexity and uncertainty which will be inhibitive in this arena of development."

The move is the latest example of the tensions that spring up between the traditional intellectual-property realm, which emphasizes exclusivity and proprietary technology, and the open-source movement, which emphasizes sharing and collaboration. Open-source software such as Linux is particularly popular in academia, where cash-strapped colleges can obtain programs for free, and students can peer into and alter the inner workings of the software.

Last year, open-source groups had objected in particular to one Blackboard patent, granted in 2006. Patent No. 6,988,138, "Internet-based education support system and methods," relates to a central feature of Blackboard's software: the ability to grant different people, such as students and teachers, different access rights to online resources such as grades, files and quizzes.

The groups enlisted the support of the Software Freedom Law Center, which in November requested that the U.S. Patent and Trademark Office re-examine the patent. The Patent Office in January agreed to re-examine all 44 claims of the Blackboard patent.

Richard Fontana, a lawyer for the Software Freedom Law Center, said on Thursday that he still believes the patent is invalid and isn't satisfied with Blackboard's pledge.

"Blackboard could have acted responsibly by making a clear and unqualified commitment not to assert its patents against open-source software," Fontana said. "Instead, Blackboard has produced a convoluted document in which, for example, it reserves the right to assert the patent against open-source software that is "bundled" with other software, an ill-defined concept that could potentially cover most circumstances in which open-source e-learning software is used."

Blackboard's patent pledge states: "Blackboard hereby commits not to assert any of the U.S. patents listed below, as well as all counterparts of these patents issued in other countries, against the development, use or distribution of open-source software or homegrown systems to the extent that such open-source software and homegrown systems are not bundled with proprietary software."

The company reserves the right to revoke the pledge for parties that sue Blackboard for patent infringement.

Small, responding to Fontana's concerns, pointed out that the section on frequently asked questions included in the Blackboard pledge lists the open-source projects specifically that don't have to worry about the patents.

"We basically said we're never going to sue any of these companies for any reason," he said.

The patent threat issue isn't academic, so to speak. Blackboard sued a proprietary-software rival, Desire2Learn, for infringement of the patent.

"That suit is certainly not a prelude to others," Small said. "That said, the (patent pledge) policy does not cover proprietary-software providers"

Overall, he said, Blackboard tried to write a pledge whose "scope is as wide as possible while striking the appropriate balance between being able to protect our investments in our intellectual property while making sure it doesn't have any negative effect on the community."


Correction: The article incorrectly described the reaction of Sakai and Educause toward Blackboard's move. They offered praise but did not endorse it.

See more CNET content tagged:
patent, open source, pledge, open-source software, intellectual property


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I'm surprised!
"Internet-based education support system and methods," relates
to a central feature of Blackboard's software: the ability to grant
different people, such as students and teachers, different access
rights to online resources such as grades, files and quizzes.

I'm surprised that this could be patentable.
In the old days, my school's library granted "different people"
with "different access rights".
Isn't that "prior art"?
Posted by lmasanti (293 comments )
Reply Link Flag
Just because the USPTO grants a patent, doesn't mean the subject matter is actually patentable. Most people agree that somewhere between 60% and 95% of current USPTO granted software patents would not withstand court scrutiny as to their utility, novelty and unobviousness. I believe this is justification alone to exclude software from patentability as the alleged "benefit" of granting the remaining 5% a patent is not worth the massive harm to the economy of granting poor quality patents.

This "pledge" is a bit of a joke, and is just a company with a poor quality patent wanting to remove a community resource that will be helping to invalidate a patent that should never have been granted in the first place.

<a class="jive-link-external" href="http://flora.ca/" target="_newWindow">http://flora.ca/</a>
Posted by Russell McOrmond (63 comments )
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Perhaps some patent examiners should be retired???
Perhaps some patent examiners should be retired???
No doubt any young patent examiner that have graduated within the past 5 years would have recognized that this is the same (or a subset) of what was she used in the college they graduated from. I teach in several colleges/universities, and this describes something like what is being used during the past several years in the smaller ones. In the Open University (Israel) the system seems to includes everything plus a lot more, and is certainly much more complete than the described simplistic three level model of student/instructor/administrator roles. We have more levels (like students can belong to a course and then to a groups with different instructors. instructors have less privileges than course coordinators, and much more). I guess US software patents don't apply here, but prior art here applies to US patents. And I guess there are many systems like the one described in the patent and better that have been working for years already. I wonder if the patent applies retroactively, and if not if it applies to older systems from the time monopoly has been granted to this company by the US authorities, or if older systems are exempt by virtue of being there first even if the patent is not thrown away. And I wonder if patent examiners are checked for blood alcohol levels before granting a patent.
Posted by hadaso (468 comments )
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