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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 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 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

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.

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