Blackboard offers patent pledge

Facing sharp criticism from academic computing experts, Blackboard Inc.–the market leader in selling learning management system (LMS) applications to schools and universities–on Feb. 1 announced what it calls a legally binding promise that it won’t pursue patent lawsuits against users of open-source online courseware technology.

An open-source group said it welcomed the move but noted a key caveat: Blackboard’s pledge covers a number of named open-source projects, but technically leaves open the possibility that future open-source initiatives that bundle proprietary software could be vulnerable.

The announcement is the latest development in a case that has been closely followed in the information technology and education communities.

A year ago, Washington, D.C.-based Blackboard, which has about 60 percent of the market for so-called “eLearning” systems, or the software used to manage online courses, was awarded a patent that covers some of the basic features of the software used by colleges and universities to run courses over the internet.

The patent prompted an angry backlash from some members of the academic computing community, who called it an attempt to own the very idea of online learning.

Many universities mix and match eLearning software, both proprietary and open source, to develop their own distinctive systems. Blackboard’s patent, they argued, went against the spirit of academic cooperation and would stifle innovation. Some said they even feared lawsuits. (See “Colleges eye LMS patent fight”:

Blackboard denied it would sue academic users but is now making that commitment more formal, with a worldwide agreement that the company’s chief legal officer, Matthew Small, said could be used in court against the company if it ever pursued such an action.

However, Blackboard isn’t giving up its right to pursue patent infringement lawsuits against proprietary software companies that it believes are infringing its patents. The company’s lawsuit continues against rival Desire2Learn of Waterloo, Ontario.

Blackboard’s announcement includes a statement of support from the Sakai Foundation, a leading open-source group that has criticized the patent, and EDUCAUSE, a national group promoting information technology on campus. But Sakai Chairman John Norman, of the University of Cambridge, said his organization remains concerned that bundled code is not included in the pledge and continues to believe the patent never should have been issued.

Statement from EDUCAUSE and the Sakai Foundation in response to Blackboard’s pledge:

“… The patent pledge announced … by Blackboard [is] a step in a more positive direction … [in] that it offers some comfort to a portion of the academic community that uses open-source or home-grown systems. In the pledge, Blackboard states that it will not assert certain patents against open-source or home-grown systems bundled with no proprietary software. We particularly welcome the inclusion of pending patents, the clarification on the commercial support, customization, hosting, or maintenance of open-source systems, and the worldwide nature of Blackboard’s pledge. We also appreciate the willingness of Blackboard to continue with frank and direct dialogue with our two organizations and with other higher-education representatives and groups to work toward addressing these problems of community concern.

“Although Blackboard has included in the pledge many named open-source initiatives, regardless of whether they incorporate proprietary elements in their applications, Blackboard has also reserved rights to assert its patents against other providers of such systems that are “bundled” with proprietary code. We remain concerned that this bundling language introduces legal and technical complexity and uncertainty, which will be inhibitive in this arena of development.

“As a result, the Sakai Foundation and EDUCAUSE find it difficult to give the wholehearted endorsement we had hoped might be possible. Some of Sakai’s commercial partners and valued members of the open-source community will not be protected under this pledge. Furthermore, … while this pledge offers a formalization of Blackboard’s past claims about the intent of its patents, it does not speak to the quality or validity of the patents themselves. Sakai and EDUCAUSE maintain the position that Blackboard’s U.S. patent No. 6,988,138 is overly broad, and that the U.S. Patent and Trademark Office erred in granting it to Blackboard. … We believe that this conclusion will ultimately be decided by the re-examination of this patent through the USPTO and in the current litigation.”

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