A full-fledged flap has developed in the eLearning community over a U.S. patent awarded last January–but only announced in July–to Blackboard Inc., the market leader in learning management system (LMS) applications.
The patent, and the decision by Blackboard to sue a smaller competitor, has prompted an angry backlash from some in the ed-tech community.
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.
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.
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 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.
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. Blackboard has about 60 percent of the market for those systems, followed by eCollege and Desire2Learn with about 20 percent each, according to Eduventures.
“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.
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.
Blackboard’s Small says the company 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,” he said, using the 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.”