February 1, 2007 12:56 PM PST
Education software firm OKs open-source patent use
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."
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