November 30, 2006 4:06 PM PST

Open-source group wants educational patent reversed

A legal center is trying to overturn a patent it says threatens three open-source educational projects, a sign of the tension between patent holders and the collaborative programming community.

The Software Freedom Law Center said Thursday that it has asked the U.S. Patent Office to re-examine a patent awarded to education software company Blackboard. It claims that the patent is bogus and could undermine three open-source education software projects it represents--Sakai, Moodle and ATutor. The patent, No. 6,988,138, is titled "Internet-based education support system and methods" and 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 or quizzes.

"It's a junk patent that should never have been given by the Patent Office," said Richard Fontana, a patent attorney with the Software Freedom Law Center. And the patent's claims could have an impact on the three projects, he said: "They do effectively cover just about any e-learning software that is currently in use."

Blackboard, which filed for the patent in 1999 and was awarded it in January this year, sees things differently. It sued a proprietary software rival, Desire2Learn, for infringement of the patent, but it isn't going after open-source projects or educational institutions, said Matthew Small, general counsel of the Washington, D.C.-based company.

"It's important to point out this is an isolated suit. It is not the first step in a multistep campaign...Our focus not is not on open source or universities. We want them to sleep easy at night," Small said. Blackboard uses and supports open-source software, he said.

The disagreement spotlights growing tensions between the open-source movement, which shares software methods freely, and the proprietary realm, where patents and copyrights are used to keep control over software. Patents have proved to be a thorny issue in a recent partnership between Microsoft and Novell and in discussions over a new version of the General Public License. Meanwhile, open-source allies such as IBM and Nokia have made various pledges not to sue over patents used in Linux, the best-known open-source project.

Re-examination process
The U.S. Patent Office has three months to decide whether to re-examine the patent, Fontana said. During that time, Blackboard may offer its opinion and the center may rebut. If, at the end of that period, the agency chooses to re-examine it, the discussions will be held between just it and Blackboard.

Blackboard is confident the patent is valid, Small said. "We welcome another look at the patent. We believe a re-examination will only serve to strengthen our patent."

One issue that divides the two sides is the assessment of the patent's claims. The Software Freedom Law Center believes the claims "are extremely broad," Fontana said. "They're claiming (patent rights to) any kind of system in which there are different user roles and different file access depending on those roles." But role-based access rules is a decades-old technology in the computing industry, he said.

But the center's assessment "is a gross overstatement of what is claimed in the patent," Small rebutted. The patent covers the specific situation in which a single user has multiple roles. "It used to be that if you were an individual in multiple courses--a student in some and a teacher in one--you would have a different logon, a different calendar, a different environment when you switched from one to other," Small said.

Another difference of opinion is on what sorts of assurances Blackboard might provide to open-source projects.

The company said it couldn't come to a patent agreement with the Software Freedom Law Center because the group was asking for too much. It said the company should "give up its rights to enforce not only this patent, but any patent we may ever come with in the future for any use of open-source, whether by commercial or noncommercial" organizations, Small said. If Blackboard didn't agree to do so within 10 days, it would request the government re-examination, he said.

But Fontana presented a different view. He said the Software Freedom Law Center only sought an agreement for Blackboard not to assert current and future patents against open-source projects, and said an even narrower agreement would have been welcome. "If they had offered to provide a patent pledge or commitment not to assert this one patent against the open-source community, that would have been acceptable to our clients," Fontana said.

Though the center can't withdraw its re-examination request, there still might be room for a separate agreement between the two sides. If Blackboard offered a pledge not to assert its patents, that promise would likely take the form of other nonassertion policies, such as IBM's list of patents it won't assert against open-source groups, Small said.

And Fontana said there's still room for discussion. "We are always open to further discussions with them."

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26 comments

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This has "Prior Art" written all over it!
Cripes - as a former educator, I KNOW that that exact patent
description has been implemented in numerous educational
software and web-based systems - starting with Cisco Academy
and going onwards.

Pfft - this'll take nothing at all to strike down, if the USPTO isn't
totally clueless.
Posted by Penguinisto (5042 comments )
Reply Link Flag
Not just in education
We designed security systems like this back around 1985, because it was simple and direct. It wasn't new then, it isn't patentable now.

The patent office is a joke.
Posted by Mycroft_514 (19 comments )
Link Flag
Not sure about legal terminology but...
...I began teaching entirely online English composition courses in 1999 through a vendor called Jones e-Education out of Denver. I don't know if they're still around but they had these capabilities back then. I think we could have grown with them but the traveling Blackboard salesman came through and coaxed the college prez into buying a down market version of Bb for $50,000. If the patent stands it's a patent for the most counterintuitive, user unfriendly, never-use-one-step-when-three-or-four-will-do product. Hey. Could Bb's acquisition of Web CT have anti-trust implications? Don't mind me. Just on a roll with hours of paper grading ahead.
Posted by graceo (1 comment )
Link Flag
PTO=braindead
Just goes to show how truly braindead the entire PTO staff is. Its a good thing that art works cant be patented or they would give a patent to a reproduction of the mona lisa.
Posted by R Me (196 comments )
Reply Link Flag
Incorrect
This shows how braindead you are. Obviously there are certain areas in which the USPTO procedures need improvement. Nobody is claiming that all patents are suspect, so the USPTO must be doing many things right.
Posted by zboot (168 comments )
Link Flag
More Like Brain Dead Open Source Movement
Those socialist clowns are trying desperately to circumvent U.S. copyrights by trickery and deceipt with the GPL and are now beginning to run up against the inevitable--the constitutional rights to protection of private property and its many uses. I hope the whole OSM is relegated to the trash heap of history just like so many socialist agendas of the past.
Posted by WJeansonne (480 comments )
Reply Link Flag
What are you smoking?
"Those socialist clowns are trying desperately to circumvent U.S. copyrights by trickery and deceipt with the GPL"

How are they socialists and how they being deceptive? The GPL is clearer than most commerical EULAs, It very simple if you use code from or modify an open source project and distribute it then by the terms of the GPL license the source code must be made available under the GPL or a compatible license. There is no trickery, as the terms are spelled out, and when in doubt clarification requests can be made of the author or FSF(Free Software Foundation). All the whole problem can be avoided by proprietary developers by not using GPLed code in their software.


"and are now beginning to run up against the inevitable--the constitutional rights to protection of private property and its many uses."

How so? The USPTO has acknowledge thousands of patents that were granted are of questionable nature. Ideas that are obvious to someone in the field or have prior art are not patentable. LSI for example, just patented the doubly linked list, a concept that has been around in computer science for a very long time. EULAs fall largely under contract law and in the U.S one can enter into a contract for just about anything. Obligations in the use of intellectual property being one. Microsoft has failed to specify what patents if any they believe Linux infringes. SCO's claims against IBM and Linux have for the most part been thrown out by the courts because they haven't shown any proof of the infringement and even their ownership of Unix has been called in to question.


"I hope the whole OSM is relegated to the trash heap of history just like so many socialist agendas of the past."

Unlikely, the OSM is above developers who are willing to share their code and let other use and improve upon it. As long as such developers exist the OSM will exist. The OSM isn't limited to the GPL license, there is Mozilla License and the BSD license to name a few.
Posted by unknown unknown (1951 comments )
Link Flag
Software patents are for commies only
Sounds to me like software patents are straight out of the old Soviet system of totalitarian repression . You cannot have your thoughts- those thoughts are a monopoly issued by the state. If you express your thoughts, you will be hounded and fined and jailed and labeled an enemy of the people.

Pure software is just like pure speech- it is totally derivative and completely novel simultaneously. If you can't understand that, then you have good company in the USPTO. No one can rip off your code- it's copyright protected the instant you write it. The "protection" (and consequent prohibition to others) of a pure thought, such as a user having more than one role and doing this and not that, as in this case, is the attempt to control and monopolize a mere idea. That's totalitarianism- the state decides who gets to use mere ideas.

Software is capable of expressing every idea humanity has. It's that flexible, that fluid and that universal in scope. You cannot apportion and mete out, idea by idea, every thought people have had or are going to have just because they are expressed in software. That's the difference between software and hardware- software is a language used to express ideas. The ease, naturalness, spontaneity and universality of writing code makes it absolutely and completely different from inventing a new light bulb, or a new ABS braking system or a new cancer treatment.

If people could invent those as casually as the types of things that get patented by a pathetic minority of software companies, then those things would not be patentable either. Why? Because a genuine reading of the Constitution reveals that a patent is granted FOR A SPECIFIC PURPOSE, that purpose being to aid in the spread of useful knowledge; knowledge which would otherwise be kept secret by its practitioners so they might profit from it. So in exchange for revealing their amazing intellectual feats to society at large, patenters are granted a 20 year monopoly on them. But that is the ONLY reason. It's not some Ayn Randian or God-Given or State Given (chose one) inalienable right that is automatically bestowed upon the first person to rush to the patent office with an idea that is so obvious no one else bothered to even write it own. In fact, there is NO natural right to monopolize thought at all and no natural right to monopolize physical invention of any kind, except as provided in the Constitution as specified above for the reasons stated above. Other people think of the same ideas these software companies think of-millions of other people. The fact that they're trying to STOP other people from using their own natural thinking smacks of Soviet-style Communism where what is mine has somehow become an object the state has control over and somehow the state can deny me my own ideas and give them to some huge corporation, who, by the way, has lots of lobbyists in Washington and contributes handsomely to my Senators reelection campaign.

That's a system of patronage equal to anything the Soviet union ever came up with.

Better dead than red.
Posted by asdf (241 comments )
Link Flag
Actually, we know who the brain dead one is...
What was patented is a widely used and popular access control framework. It has existed for a long long time. This is like someone patenting the TV or automobile. The patent should never been granted. Under this patent EVERY software vendor could be sued for infringement because EVERY piece of software that has users has some sort of role-based security model.
Posted by umbrae (1073 comments )
Link Flag
Dear Microsoft Astroturfer: Please Educate Yourself
Please, please learn a little about the subjects you speak on before you spout off about them.


* The GPL relies on copyright law for enforcement.

* Open Source != communism. Nor does it equal capitalism. Or Socialism. Or Rastafarianism.

You seriously need to learn the basics.
Posted by Penguinisto (5042 comments )
Link Flag
The other's have made the needed points
But I still gotta add my vote. The problem here is that you invoke the word Socialist (form of government, political methodoligy) to argue for a system that restricts the rights of the people in favour of greed.

This "OSS is a socialist threat to national security and the world as we know it" is such absalute BS only used by the truly ignorant (meaning capable of gaining knowledge but too lazy too).

You may perfer a world where you can choose only between two software dictators and should you choose to only recognize those two (Apple, Microsoft) then that's your choice. After all, us FOSS folks believe in freedom of choice, we just want to retain that freedom of choice.

And if you give me any crap about "boo hoo, Ihave to give away my work for free and can't make any money in the IT industry, boo hoo". The initial document that usered in the Free Software movement (after the already existing Open Source community) had a stinking long list of viable business models that offered sources of profit without restricting the rights of your user base.

If you really feel there's a Socialist boogyman after you; further the evolution of the species by jumping into your backyard bomb shelter and turn off the ventelation.
Posted by jabbotts (492 comments )
Link Flag
re
The GPL is grounded completely in copyright law. Patents are different then copyrights, and completely unneccesary for software, in fact is harmful to the software industry.

If MS told you that the moon is made of cheese you would believe that.
Posted by qwerty75 (1164 comments )
Link Flag
US Patent issuance process is broken, bordering on criminal
The way that the US Patent office issues Patents is broken beyond belief. Companies are being issued patents on obvious, non novel & with Tons
of precedence; just because they had the legal fees to hire patent lawyers and spend tons of money on legal fees.

One thing is that for sure, the European Union should declare all US issued Patents to be Null & Void in Europe. This may wake the US government up
to the fact that US Patent office is working to stifle innovation, to increase costs to consumers, to create monopolies. After all aren't we supposed to be living in a Capitalist systems, when the best ideas win? Then WHY THE HEK does the US government provides monopoly powers to certain companies by this issuance of Patents! And does so over obvious and non novel ideas which are hardly an invention. I am of course specially talking about software patents and even more so, the so called "Business process" patents.
Posted by Sea of Cortez (67 comments )
Reply Link Flag
Single user has multiple roles? Anything new here?
Single user has multiple roles? Anything new here?

This is a kind of situation that has existed in the past: same person has different roles, and has access rights to information and resources needed to perform each role on a "er role" basis. This has probably existed since the beginning of civiliztions, ever since kings have hired the help of servants.

The fact that one set of permissions might be written in ancient babylonian and another is written in C++ should not count here. The fact that an electronic device is used to handle the permisions is immaterial. And the fact that the software is particularly set to provide services to people having roles identifyed by the strings "student" or "teacher" shouldn't matter at all.
Posted by hadaso (468 comments )
Reply Link Flag
Dumbest Patent Evar?
Thats just rediculous
Posted by (402 comments )
Reply Link Flag
re
Not more dumb then Amazons patent on "one click" or any other software patent for that matter.

Software patents should never have been allowed and it is the greed and stupidity of corporations patenting every obvious and prior-art idea will be the undoing of software patents.
Posted by qwerty75 (1164 comments )
Link Flag
How to prove this patent is garbage...
Simply load a machine with software written several years prior to the filing of this patent and set up role based security on that machine. I know you could do this with old versions of Unix, Netware and even Windows (the NT versions). In fact it might be instructive to set up several OS's in similar fashion so as to prove that not only is this patent covering a known capability but that it was widely known and usable on multiple OSes.
Posted by HandGlad2 (91 comments )
Reply Link Flag
How to prove this patent is garbage...
Simply load one or more machines with OSes from prior to the filing of this patent. Several years prior would be good and set up users in "roles" on those systems based on an educational setting. That should not only show that their patent is not original thought but that it's a well known concept that was fully realized in many systems long before they decided to patent it.
Posted by HandGlad2 (91 comments )
Reply Link Flag
 

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