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SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Thursday, November 30 2006 @ 10:40 AM EST

I am very happpy to tell you that the Software Freedom Law Center has filed a reexamination request with the USPTO regarding Blackboard's eLearning patent. I told you about this patent and mentioned I had written about this it for LWN back in August, shortly after Blackboard sued Desire2Learn, another educational software maker. Here's the complaint [PDF].

The abstract of the patent reads like this:
A system and methods for implementing education online by providing institutions with the means for allowing the creation of courses to be taken by students online, the courses including assignments, announcements, course materials, chat and whiteboard facilities, and the like, all of which are available to the students over a network such as the Internet. Various levels of functionality are provided through a three-tiered licensing program that suits the needs of the institution offering the program. In addition, an open platform system is provided such that anyone with access to the Internet can create, manage, and offer a course to anyone else with access to the Internet without the need for an affiliation with an institution, thus enabling the virtual classroom to extend worldwide.

Someone also did a very clever plain English version [PDF], so nonlawyers could understand all the claims. I also, in my research, found that Blackboard and Microsoft entered a partnership in 2001, with these goals, according to this article:

In what the two companies call a "preferred relationship," Microsoft will promote Blackboard to its education customers and Blackboard will suggest that its clients use the Microsoft Windows operating system to run Blackboard on their servers to take advantage of special features available only to Microsoft users....

Despite its emphasis on Microsoft products, Blackboard will still write versions for Unix and Linux, says Matthew S. Pittinsky, chairman of Blackboard. All versions will have the same set of basic features, although Blackboard for Microsoft will eventually have more features than Blackboard for Unix or Linux, he says. "It will be more feature-rich to run Blackboard out of the box on Microsoft" than on other platforms, Mr. Pittinsky says. System administrators will have more options for configuring the Microsoft version of Blackboard than the non-Microsoft versions. End users will notice a difference between systems run on Microsoft and those run on other platforms, he says. It will be easier for users to incorporate documents from any Microsoft applications in Blackboard's online courses. They will have just one log-on for all Blackboard and Microsoft software through Microsoft's Passport technology.

Blackboard will also work more seamlessly with .NET, Microsoft's new technology for making all of its products interact using XML, or extensible markup language, a more powerful and flexible successor to HTML, the ubiquitous Web-coding language....

Microsoft and Blackboard formally agreed to cooperate last April. The decision was "almost a no-brainer" because Microsoft has financed and worked closely with Blackboard since Blackboard's creation in 1995, says Mr. Pittinsky, the company's chairman. The companies agreed that Blackboard will write all future versions of its software to operate best on servers running Microsoft's Windows operating system. Microsoft has given Blackboard $10-million in venture capital and has stationed Microsoft employees within Blackboard to help with product development...."Learning could take over from e-commerce as the number-one use of the Internet," says Mr. East, of Microsoft. That is enticing to Microsoft, says Mr. DeGroot of Directions on Microsoft. "What Microsoft wants is to own the educational-software market," he says.

Most importantly, the article mentioned that a Wikipedia page had been set up for folks to contribute any prior art. They have. And according to Eben Moglen, Executive Director of SFLC, it worked: "We are confident that there is enough prior art for the Patent Office to open, re-examine, and ultimately revoke all of the patent's claims." Here's the press release in full.

*********************

Patent Office Asked to Review and Revoke Blackboard Patent

Software Freedom Law Center Files Re-Examination Request on Behalf of Clients

NEW YORK, November 30, 2006 -- The Software Freedom Law Center (SFLC), provider of pro-bono legal services to protect and advance Free and Open Source Software, has filed a formal request with the United States Patent and Trademark Office (USPTO) for re-examination of Blackboard's e-Learning patent. If successful, the request will ultimately lead to the cancellation of all 44 claims of the patent.

Blackboard, Inc., maker of web-based software that allows teachers and students to interact outside of the classroom, was awarded the patent on January 17, 2006. The patent, "Internet-based education support system and methods" (U.S. 6988138), grants Blackboard a monopoly on most educational software that differentiates between the roles of teacher and student until the year 2022.

The Software Freedom Law Center filed the re-examination request on behalf of Sakai, Moodle and ATutor, three open source educational software programs. The request cites documents that predate the filing of the Blackboard patent and describe everything claimed in it. For a patent to be valid, it must contain ideas that were original when it was filed.

"In a free society, there is no room for a monopoly on any part of the educational process," said Eben Moglen, Executive Director of SFLC and Professor of Law and Legal History at Columbia University. "We are confident that there is enough prior art for the Patent Office to open, re-examine, and ultimately revoke all of the patent's claims."

The Software Freedom Law Center filed the request for re-examination on November 17. The Patent Office will decide whether to order re-examination of the patent within three months.

About the Blackboard Patent

In July, Blackboard filed a lawsuit against Desire2Learn, a competing educational software maker, alleging infringement of its e-Learning patent. Although Desire2Learn's software is not open source, the open source and educational software communities responded with immediate concern to the possibility of an additional lawsuit that targets them.

"The educational software community has for decades thrived on the open discussion and transmission of ideas," said Joseph Hardin, Sakai Foundation Board Chairman. "We are deeply concerned that Blackboard's broad patent will stifle innovation in our community."

"Blackboard's patent is patently unjust, as it covers ideas that were widely known and implemented before it was granted," said Martin Dougiamas, founder of Moodle. "It's part of a disturbing trend of patents that seek to lock up obvious cultural ideas as the property of individuals."

After Blackboard filed the lawsuit against Desire2Learn, volunteers across the Internet found examples of older programs that used ideas claimed by the patent. These volunteers collaborated to make a Wikipedia article on the "History of virtual learning environments," which documents several examples of prior art.

"A patent on an educational concept -- namely the relationship among students, instructors, and administrators -- makes no sense," said Greg Gay, project lead of ATutor. "Such ideas are public and have been practiced for centuries; they are not the result of research and development."

About the Software Freedom Law Center

The Software Freedom Law Center -- chaired by Eben Moglen, one of the world's leading experts on intellectual property law as applied to software -- provides legal representation and other law-related services to protect and advance Free and Open Source Software. The Law Center is dedicated to assisting non-profit open source developers and projects. For criteria on eligibility and to apply for assistance, please contact the Law Center directly or visit the Web at http://www.softwarefreedom.org. About the Sakai Foundation The Sakai Foundation is a non-profit corporation that supports the development and distribution of the free, open source Sakai Collaboration and Learning Environment, and nurtures the global community of developers and users that creates it. The Sakai CLE enables online learning, teaching, research and collaboration within and across distributed communities. The Foundation is made up of an evolving international community of universities, colleges, companies and individuals who contribute to the Sakai CLE, and support its use in hundreds of schools and institutions, from small colleges to statewide university systems, around the world. See sakaiproject.org. About Moodle Moodle is open-source software designed for collaborative Internet-based learning, with development led by the founder Martin Dougiamas and supported by a community of over 150,000 educators and developers. It is used in 164 countries by over 19,000 known sites in 75 languages. Moodle is dedicated to creating tools that improve the reach and depth of online education, particularly in areas that can not afford commercial software licenses. For more information see http://moodle.org/.

About ATutor

ATutor is an Open Source Web-based Learning Content Management System (LCMS) designed to be accessible to all who might use the system, including those with disabilities, and designed to be adaptable to instructional requirements of individual teachers, who can configure the system to their specific teaching needs. With participation from many groups around the world, ATutor is being developed and maintained at the University of Toronto's Adaptive Technology Resource Centre, one of the leading contributors to knowledge on inclusive design for information technologies. ATutor is one of many Open Source projects underway at the centre.


  


SFLC Asks USPTO to Review and Revoke Blackboard's Patent | 135 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections go here.
Authored by: Kanth on Thursday, November 30 2006 @ 11:14 AM EST
You know the drill

[ Reply to This | # ]

Off Topic
Authored by: feldegast on Thursday, November 30 2006 @ 11:17 AM EST
Post em if you've got em :)

---
IANAL
My posts are ©2004-2006 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Windows v Other OS's.
Authored by: Alan(UK) on Thursday, November 30 2006 @ 11:59 AM EST
It would seem that the Linux/Unix product could just be described as
"CRIPPLEWARE".

[ Reply to This | # ]

SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Authored by: Griffin3 on Thursday, November 30 2006 @ 12:03 PM EST
Go, SFLC! Banzai! Banzai!

I sincerely hope that not only does the USPTO revoke this patent outright, but
that it takes the examiner responsible, the folks at Blackboard, and the patent
attorneys involved, and locks them all up in a tiny room with the Two Armed
Spanking Machine for about 30 minutes or so.

Of course, there is always the hope that the USPTO will let slip a patent so
egregious, so blatantly obvious, that the rest of the population will rise up
and do the spanking for me. I just don't think this one will capture enough
outrage for this to work.

Shame RIM didn't just shut off all the congresscritters' Blackberries for a
week, before they folded.

JTOL, Glenn

[ Reply to This | # ]

SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Authored by: Anonymous on Thursday, November 30 2006 @ 12:04 PM EST
Timothy Budd was doing this in the 1990's at Oregon State University with his
Object Oriented Programming class. This class had student at OSU as well as
other universities (including international), and was completely online. He
would be a good one to contact, because it was not long after WWW took over from
things like gopher and ftp.

[ Reply to This | # ]

In bed with MS? You decide.
Authored by: wvhillbilly on Thursday, November 30 2006 @ 12:28 PM EST
This sounds like a conspiracy between Blackboard and M$ to perpetuate and extend
the monopoly on Windows. Why else would they build the program to work better
and have more features with Windows than with other operating systems? And what
better inducement for them to do this than financing them, providing them with
venture capital and helping them build the program?

And then they top it all off with a patent to lock everything up so only they
can produce educational software, and programs that work best with Windows, by
design.

Maybe I'm being cynical, but that's the way I see it.

IANAL, just my opinion.

---
What goes around comes around, and the longer it goes the bigger it grows.

[ Reply to This | # ]

Are patent elements separable?
Authored by: Anonymous on Thursday, November 30 2006 @ 12:34 PM EST
Referring to the plain text version:

29. The system of claim 28 wherein selection of the announcement area hyperlink provides a web page comprising a group of course announcements.

When you click on the announcements link on the course home page, it takes you to a page that displays a bunch of announcements.

Is every element of a patent individually protectable, or only the system as described as a whole?

Steve Spicer

[ Reply to This | # ]

Antitrust?
Authored by: Anonymous on Thursday, November 30 2006 @ 12:51 PM EST
That MS agreement sure sounds like an antitrust violation to me (particularly
for a convicted illegal monopolist).

I doubt the Bush DOJ will even give it a second look though... :(

~ray

[ Reply to This | # ]

When is it fraud ?
Authored by: Latesigner on Thursday, November 30 2006 @ 01:03 PM EST
Are there any criminal penalties for doing things like this?

---
The only way to have an "ownership" society is to make slaves of the rest of us.

[ Reply to This | # ]

Can they ask to review this patent too ?Patent 6,496,827
Authored by: Anonymous on Thursday, November 30 2006 @ 01:14 PM EST
came from an anonymous OT post a few articles ago Patent 6,496,827
JavaScript validation patent in clinical trials :)
And people are getting sued and they are winning
Phase Forward Settles
Data labs Settles
I guess suing end users are a trend now to force companies to settle: Bio IT world article

[ Reply to This | # ]

Microsoft non-innovation again......
Authored by: Anonymous on Thursday, November 30 2006 @ 01:14 PM EST
Reading the Wikipedia article, it is obvious that there have been a large numebr of contributions to this field from companies, educational establishments and individuals around the world, over a substantial period of time, but little or nothing of significance from M$.

Maybe Bill is insanely jealous of those who actually can innovate, hence the need to suppress their efforts with an obviously bogus patent?

[ Reply to This | # ]

IT IS JUST PLAIN SICKENING!!!
Authored by: grayhawk on Thursday, November 30 2006 @ 01:54 PM EST
I wonder who is responsible for the USPTO and why are there no performance
measures kept on this office? If these people were working for my company I
would fire the lot of them since they sure don't do a proper investigative job
on potential patents. They just seem to fast track anything that is presented
to them with just a cursory look for anything that might be prior art. I would
like to see a study done on how long it takes to get a patent approved. I bet
it is just a matter of weeks and certainly not months and months, especially
were big dollars are involved. I think this office needs to be held accountable
for failure to do a proper prior art search and lack of performance should
result in some serious sanctions emposed on the department and staff who fail to
do a proper job. It is time to make sure that their future is at stake for
failing to do what it is their mandate to do and that is to properly research
all submissions to see if there is prior art that prevents the issuing of a
patent.

---
It is said when the power of love overcomes the love of power, that it is then
and only then that we shall truly have peace!

[ Reply to This | # ]

patent nonsense
Authored by: Anonymous on Thursday, November 30 2006 @ 01:54 PM EST
I don't get this patent nonsense.

If I apply for a patent on the method of walking, consisting in placing one of your foot ahead of the other, alternating, until your destination is reached, as long as there is no former patent applied for that, I can get it granted, only to be denied after (and only if!) someone else challenges it?.

Because reading the plain-English-version of the claims, it seems that's what those guys did.

[ Reply to This | # ]

SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Authored by: Anonymous on Thursday, November 30 2006 @ 02:22 PM EST
I misread the subject line as "SFLC Asks USPTO to Review and Revoke Blackbeard's Patent".

Something to do with software piracy, maybe?

Darkside

[ Reply to This | # ]

my prior art-www.circlemud.org modifed to be educational tool(ONLINE)
Authored by: Anonymous on Thursday, November 30 2006 @ 02:38 PM EST
i made a circlemud form circlemud.org in a method which to teach online and via
a network and that was in 1998 so if this is upheld i say i should sue them as i
did this with tons a witnesses etc at a local college.
so phewey on the USPTO.
note that MUD is older than 1998 as are the diku ROM and merc code bases and
have been used by others in same way and they come with there own liscences,
that make the code free and modifyable as long as the liscneses stay with the
code and credits are kept in it. How (novell) novel.

[ Reply to This | # ]

SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Authored by: Jeays on Thursday, November 30 2006 @ 02:43 PM EST
The easy-to-read version of the patent is excellent. If the USPTO were to
demand one of these as a requirement, the number of patent applications would go
down.

And who knows, the patent examiners might benefit themselves - they could always
go back to the formal language if they have the "surely that can't be
all?" reaction.

[ Reply to This | # ]

SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Authored by: Anonymous on Thursday, November 30 2006 @ 03:31 PM EST
In Australia - This patent would potentially shutdown "The School of the
Air".

They have been operating in Australia for 50-60 YEARS, sharing a relationship
with students, teachers, using a network (a radio) to perform lessons, exams and
such.

This patent? in the words of Dogbert... BAH!!

http://en.wikipedia.org/wiki/School_of_the_Air

[ Reply to This | # ]

I don't see anything new, non obvious, in this
Authored by: RPN on Thursday, November 30 2006 @ 03:37 PM EST
IANAL but I have been involved in training for some time and playing with and
employed to play with computers sometimes too, for over 25 years now. Reading
the plain language version I really cannot see anything that is in any way
innovative in this patent at all. All it is to me is an obvious aggragation of
software and education methods/processes that are very well known to positively
ancient which the applicant tries to present as 'new' and 'original'. This is in
fact both a software and a 'business methods' type patent and frankly the
epitome of why both are wrong; sorry rephrase that, plain stupid.

Richard.

[ Reply to This | # ]

OK if they want to be jerks
Authored by: Anonymous on Thursday, November 30 2006 @ 03:50 PM EST
Apparently Blackboard bought WebCT. Over the last few years I have created many
thousand questions for WebCT. No more. From now on, I will devote my efforts
to making them usable in Moodle. The questions were imported into WebCT as text
files and it shouldn't be that hard to create a script that converts those files
into Moodle format. There are a couple of gotchas though so it will take more
than five minutes.

Our school is looking at switching to Moodle and I will fully cooperate in
that.

[ Reply to This | # ]

SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Authored by: wvhillbilly on Thursday, November 30 2006 @ 04:27 PM EST
From the Chronicle of Higher Education:
Little doubt exists that Microsoft is cementing its own place in the industry, but people wonder whether the move is a prelude to Microsoft buying out Blackboard.

"I would be willing to bet that they're going to be bought by Microsoft," Mr. Bender says.

I wonder. If Blackboard's patent gets thrown out, how might this affect its current relationship with M$? Would M$ still be interested in buying out or hanging on to Blackboard, or would they more likely dump them like a lit firecracker?

---
What goes around comes around, and the longer it goes the bigger it grows.

[ Reply to This | # ]

Another Shill for Microsoft -- SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Authored by: Anonymous on Thursday, November 30 2006 @ 04:45 PM EST
Here we have Blackboard shilling for Microsoft, the same way SCO did. Using
Blackboard, Microsoft will test the waters to find out what weaknesses there are
using a patent lawsuit to attack an open source project, and modify their
strategy accordingly. Once they have it down pat, they will start taking steps
on their own, unless one of their shills is successful enough that it can do the
dirty work for them.

PJ,Marbux,

Here are a couple of questions for of you. Microsoft is a convicted
monopolist. If they were to develop software for the educational market that
would run markedly better on Windows, would they run afoul of antitrust laws?
If so, how is it that a Microsoft partner can get away with it?

[ Reply to This | # ]

Contact your online CE providers RE patent & Wikipedia
Authored by: Greybeard2 on Thursday, November 30 2006 @ 05:38 PM EST
Many professions, designations and licensee require continuing education --- and
over the past ten years the number of on-line services has multiplied
exponentially: Suggestion --- contact your providers --- forward Groklaw,
patent pages and the 'translation' PDF --- even better, call ---- I did --- but
be prepared; this is so outrageous the first reaction is disbelief.

[ Reply to This | # ]

What about Plato
Authored by: jwrl on Thursday, November 30 2006 @ 06:13 PM EST
The software hardware from CDC

<a href="http://en.wikipedia.org/wiki/PLATO">here</a>

[ Reply to This | # ]

SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Authored by: Anonymous on Thursday, November 30 2006 @ 06:39 PM EST
Is the citation in the article here relevant?

http://www.politechbot.com/2006/11/30/encryption-law-warrior/

[ Reply to This | # ]

RICO, anyone?
Authored by: dwandre on Thursday, November 30 2006 @ 08:25 PM EST
Do you think IBM can get enough material to launch a RICO claim against
Microsoft? It's been used against corrupt politicians in Tennessee (read Peter
Maas' book "Marie" about Marie Ragghianti, the whistle-blower). RICO
(Rackateer-Influenced and Corrupt Organization) Act of 1970 requires "a
collection of unlawful debt" to have occurred. Does ext^H^H^Hcollecting
money for undefined "IP" qualify?

[ Reply to This | # ]

Does this MS patent infringe on IBM's IP?
Authored by: Anonymous on Thursday, November 30 2006 @ 09:18 PM EST
Unidata, which is owned by IBM has a method of verifying ownership of data
before access is granted via ODBC queries.

This has been available for years. This MS patent had better not infringe on
IBM or Unidata patents!!!!!!!!!!!!!!

United States Patent 7,139,758
Laws , et al. November 21, 2006
Method and system for improved security to control and facilitate access to data
stored in a database

Abstract

A project data service ("PDS") shields the database from direct client
access by requiring all data requests made by a client to go through the PDS,
thereby reducing the risk of losing or corrupting data and limiting
inconsistencies caused by third-party add-on applications accessing data in the
database. In order to access data stored in a database, a client typically must
send a request through the PDS, which can determine if the client has access to
the requested data. Then PDS typically retrieves the data from the database and
passes the data to the client.
Inventors: Laws; Robert (Redmond, WA), Dinklocker; Ted (Sammamish, WA)
Assignee: Microsoft Corporation (Redmond, WA)
Appl. No.: 10/308,713
Filed: December 2, 2002

Current U.S. Class: 707/9 ; 707/10
Current International Class: G06F 7/00 (20060101)
Field of Search:

[ Reply to This | # ]

the original WWW purpose
Authored by: gus3 on Sunday, December 03 2006 @ 02:05 PM EST
Hi all. Long-time reader, first-time poster.

Sharing knowledge in a linked format was the original purpose of the world-wide
web. If this patent application didn't list http://info.cern.ch/ under
"prior art", then it is a fraud, and should be prosecuted as such.

[ Reply to This | # ]

SFLC Asks USPTO to Review and Revoke Blackboard's Patent
Authored by: iraskygazer on Tuesday, December 05 2006 @ 08:44 PM EST
Of course this patent should be revoked.

In 1995 I worked with a team of 5 software developers employed by CSC, Computer
Sciences Corporation. We developed a system for global delivery of CBT,
(Computer Based Training) packages, produced by various CBT development
companies. We established contractual agreements with each CBT company that
allowed us to deliver the company's CBT and pay a fee for each person who
accessed the CBT package. The team designed and delivered the entire system to
the US government. We also provided system delivery specs briefings to each of
the CBT companies with which we had contractual agreements. All of this design
and delivery was paid for by the U.S. government under the name of 'Project
Dispatch' and 'Dispatch2'. Since we designed the process of CBT delivery via
Internet Web services, wherever possible, and hard copy via CD, in 1995, I have
a hard time understanding how this patent was ever issued.

I still have personal development notes related to 'Project Dispatch.' The notes
contain information related to meetings and the discussions the team had about
the interaction between geographically separated teachers, students and the
coursware services. It is truly disappointing to me that a patent was ever
issued when the concept within the issued patent was already developed for the
U.S. government and was open for use, as of 1995, by many different companies
and paid for by U.S tax dollars.

[ Reply to This | # ]

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