A full-fledged flap has developed in the eLearning community over a U.S. patent awarded last January–but announced only last month–to Blackboard Inc., the market leader in learning management system (LMS) applications.

Blackboard’s patent reportedly covers certain systems and methods involved in offering online education, including course management and enterprise eLearning systems. Corresponding patents, Blackboard says, have been issued in New Zealand, Singapore, and Australia. The company also reports that similar patents are pending in Canada, the European Union, China, Japan, Israel, Brazil, India, Mexico, South Korea, and Hong Kong.

Every day, millions of students taking online college courses act in much the same way as their bricks-and-mortar counterparts. After logging on, they move from course to course and do things like submit work in virtual drop boxes and view posted grades–all from a program running on a PC.

Some contend it’s self-evident that virtual classrooms should closely resemble real ones. But Blackboard contends it wasn’t always so obvious. And now, Blackboard holds a patent establishing its claims to some of the basic features of the software that powers online education.

The patent, and the decision by Washington, D.C.-based Blackboard to sue a smaller competitor, has prompted an angry backlash from some in the academic computing community, which is fighting back in techie fashion–through online petitions and in a sprawling Wikipedia entry.

Critics say the patent claims nothing less than Blackboard’s ownership of the very idea of eLearning. If allowed to stand, they say, the patent could quash the cooperation between academia and the private sector that has characterized eLearning for years and explains why virtual classrooms are so much better than they used to be.

The patent “is antithetical to the way that academia makes progress,” said Michael Feldstein, assistant director of the State University of New York’s online learning network and one of the bloggers who has criticized the company.

Blackboard, which solidified its dominance in the field last year by acquiring rival WebCT, says its critics misunderstand what the patent claims. But the company does say it must protect its $100 million investment in the technology. The day the patent was announced, Blackboard sued rival Desire2Learn for infringement and is seeking royalties.

“It just wouldn’t be a level playing field if someone could come onto the scene tomorrow, copy everything that Blackboard and WebCT have done, and call it their own,” said Blackboard general counsel Matthew Small.

Waterloo, Ontario-based Desire2Learn said it was surprised by the lawsuit but will defend itself vigorously. No court date has been set.

Other learning management companies have questioned Blackboard’s intentions.

“The fact that one company has been granted a patent for such a broad application and now is engaging in litigation with another eLearning provider is unfortunate for a market that traditionally has been fueled by innovation and choice,” said Oakleigh Thorne, chairman and CEO of Denver-based competitor eCollege. “It also is unfortunate that Blackboard chose not to issue a press release when the patent was awarded this past January, at a time when the Department of Justice was investigating the antitrust ramifications of Blackboard’s merger with its [then] competitor, WebCT.”

The dispute is part of a contentious area of the law concerning patents awarded not just on invented objects, but on ideas and processes. In theory, patents can be awarded on a whole range of ideas as long as they are “non-obvious” and the Patent Office sees no evidence they have been described before. Patents have been awarded for everything from types of credit card offers to methods of teaching a golf swing.

Now, the issue is surfacing in the growing field of eLearning.

According to the Sloan Consortium, 2.3 million U.S. college students were taking at least one course entirely online in the fall of 2004–a figure that is likely higher now and doesn’t include “hybrid” classes with both online and in-person components. Most of those students use LMS applications, which provide the electronic backbone for online education. For-profit and traditional universities are investing millions in these systems, hoping the up-front investment will pay off down the road with a more efficient teaching model.

About 90 percent of colleges use some kind of LMS, according to data from Eduventures, a Boston company that does research and consulting on online learning. LMS software reportedly is used in about 46 percent of classes. Blackboard has about 60 percent of the market for those systems, followed by eCollege and Desire2Learn with about 20 percent each, according to Eduventures. (Last year, when Blackboard announced its merger with WebCT, some analysts put the combined share of those two firms at 80 percent of the LMS market.)

“A few years ago, this was a place to just hang your syllabus, maybe post a couple of links,” said Catherine Burdt, a senior analyst with Eduventures. “Increasingly, we see these systems as the foundation of academic computing.”

Blackboard’s patent reportedly doesn’t refer to any device or even specific software code. Rather, it describes the basic framework of an LMS. In short, Blackboard says what it invented isn’t learning tools such as drop boxes, but the idea of putting such tools together in one big, scalable system across a university.

“Our developers sat down and said, ‘College IT departments are having a lot of trouble managing all these disparate web sites from each class. How can we turn this into one computer program that manages all of the classes?'” Small said. “That was a leap.”

Critics say it was a tiny hop at most.

Blackboard’s claims are “incredibly obvious,” asserted Feldstein. The company’s patent suggests “that they invented eLearning,” said Alfred Essa, associate vice chancellor and CIO of the Minnesota state college and university system.

Advocates of the use of open-source technologies on university campuses have joined together to fight the patent on behalf of schools.

Earlier this month, representatives from the Sakai Foundation, a nonprofit group that advocates on behalf of colleges and universities operating open-source course management systems, sought the help of lawyers from the New York-based Software Freedom Law Center to prepare a joint legal defense for any infringement claims leveled against them by Blackboard as a result of the patent.

“The recent announcement by Blackboard that it is attempting to assert patent rights over simple and long-standing online technologies as applied to the area of course management systems and eLearning technologies, and its subsequent litigation against a smaller commercial competitor, constitute a threat to the effective and open development of software for higher education and the values underlying such open activities,” wrote the Sakai Foundation in statement Aug. 17.

Blackboard critics in the academic IT community have taken their case to the blogosphere. Over recent weeks, a sprawling Wikipedia entry has emerged tracking a history of virtual classrooms as far back as 1945 in an effort to demonstrate the idea was not Blackboard’s.

Why are universities concerned? Many use off-the-shelf systems sold by Blackboard already. But others use systems from rival companies like Desire2Learn, or mix and match to meet their own needs. Because universities are decentralized and have such varied systems, one size rarely fits all, says Feldstein. Many borrow from open-source courseware programs such as Moodle and the Sakai Project.

Some university IT directors worry that universities, afraid of being sued for patent infringement, will stop that mixing, matching, and experimenting–and that innovation will suffer as a consequence. Feldstein notes that most LMS applications started out as university research projects–including Blackboard’s, which began at Cornell.

Blackboard’s Small denies the company is claiming to own the very idea of eLearning. He says the company supports open source and notes that a Blackboard product called Building Blocks allows users to create their own systems off Blackboard’s basic platform. Blackboard, he says, is focused on commercial providers and has no intention of taking universities–which are its primary customers, after all–to court in an effort to collect royalties.

“Blackboard is not a troll,” said Small, using the techie term for companies that establish a patent but don’t use it except to exact royalties from others. “We’re not trying to put anyone out of business. We’re not trying to hinder innovation. We’re seeking a reasonable royalty.”

Desire2Learn founder and CEO John Baker says his company will fight the patent hard. “We hope that, after we defend ourselves, this will be good for everybody in the industry–clients, students, educators, everybody,” he said.



Desire to Learn


Software Freedom Law Center

Sakai Foundation

Michael Feldstein’s blog “e-Literate”