December 2, 2008
Blackboard Sues U.S. Patent Office
Just when you thought the patent fight over course-management software couldn’t get any more confusing, Blackboard Inc. went to federal court to sue the United States Patent and Trademark Office, seeking to overturn a recent decision concerning Blackboard’s controversial patent on course-management software.
The issue at stake is who decides whether or not Blackboard’s patent is valid. Right now the patent is being challenged on two fronts:
- Front one is the courts. Blackboard sued its biggest competitor, Desire2Learn, arguing that the Canada-based company violated Blackboard’s patent with its course-management software. On that front Blackboard is winning. In march a federal jury in Texas awarded Blackboard $3.1-million, finding that Desire2Learn did infringe the company’s patent. Desire2Learn has appealed the decision, and it modified its software in response to the court decision.
- Front two is the patent office’s own review process. Desire2Learn has challenged the validity of Blackboard’s patent, and the office is working through a formal reexamination of it. On this front Desire2Learn is winning big. In an initial ruling issued this year, the patent office struck down all 44 claims in the Blackboard patent.
Blackboard clearly wants the final decision to rest with the courts, where it has received the most favorable verdicts. Its new lawsuit, filed late last month against the patent office and Jon W. Dudas, the office’s director, seeks to overturn the patent office’s recent decision to continue its review of the patent’s validity while the court challenge goes on. Blackboard argues that once a court ruling about a patent is issued, the patent office should end any reexamination of that patent. The patent office has ruled that its reexamination will only end once a final verdict in court is issued, meaning only after all possible appeals are pursued.
Michael Feldstein, a blogger who has been tracking the Blackboard patent battle, argues that Blackboard’s latest action muddies the company’s efforts to display a greater willingness to make its software work with that of competitors. For instance, Blackboard has announced that future releases of its course-management software will allow colleges to synchronize with Sakai and with Moodle, two open-source alternatives.
“Regardless of the legal merits, the fact that Blackboard continues to assert the patent heavily undermines their new marketing message of openness,” wrote Mr. Feldstein. “I don’t understand why they still think this strategy is a winner.”
But Bruce Wieder, a partner with the Washington law firm Dow Lohnes who is watching the case, said that Blackboard’s latest move was not that unusual. “It’s not typical, but it’s not outrageous,” he said.
Blackboard issued a statement today saying that its latest action is “not an effort to stop the overall re-examination,” and that the company “remains confident in the re-examination process.” Company officials could not be reached for further comment.
Diane M. Lank, Desire2Learn’s in-house lawyer, said in an interview Tuesday that “it is rather clear that Blackboard doesn’t like the patent office since the reexamination started.” —Jeffrey R. Young
Posted on Tuesday December 2, 2008 | Permalink |Comments
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Lose, Blackboard, lose! As a student I detested their software, which is absolute trash. The potential for course management software, however, is amazing. The only thing Blackboards patents do is stifle innovation and competition in a field that desperately needs it. Their patents are ridiculous and they should be overturned. I hope this ends poorly for Blackboard — that would be a big win for everyone else.
— Brian Egan Dec 2, 07:56 PM #
In my biased opinion, no one should be surprised by the antics of Blackboard’s leaders. They are very predatory in their approach to business and do not really care to interface with open source learning management systems. Do not be fooled. In fact, if you pause for a moment, you’ll surely remember where you may have heard of a similar strategy where a dominant proprietary software maker “pretends” to play ball with open source software competitors…Does the name Microsoft ring a bell. What’s more is Microsoft invested over $10 million in Blackboard a few years ago.
As an academic, I am appalled that a company that makes its money on the backs of educators is so fixated on monopolizing the online learning landscape. What a short memory Bb’s staff must have considering the start of their software was not home grown, but acquired from an entity that had little idea of what potential markets could be exploited. Sound familiar? Think Microsoft and its first DOS program and many others (PowerPoint, Vizio, etc.). I have nothing against businesses seeking profits, I just get disturbed when I learn of a company that bends over backward to quash competition by applying for overly broad patents. And then when the patents are scrutinized by the PTO, they decide to sue the PTO. What a farce. Bb obviously is learning from it’s stepfather, Microsoft. (Look out Jerry Yang!! Oh, it’s too late, you’re gone and now Microsoft will takeover Yahoo! This time the transaction will go through because the economy is in a nose dive and shareholders want to make money off the sale to Microsoft…nothing new.)
I don’t mean to rant, well maybe I do. It’s time for common sense to rule the day. Instead of spending all the time and energy fighting legal battles Bb has no real standing to wage, it needs spend its resources in R&D and dream up a better product than already-behind-the-times Bb Next Generation (really NOT ready for prime time.)
— blackmanrising Dec 2, 09:59 PM #
Blackboard is junk. These pigs cannot build a cutting edge product so they spend their time (and our money) fighting to eliminate superior products. If the poor product isn’t enough to make you switch, how do you justify doing business with this amoral corporation? Haven’t we learned all we need to know about corporate greed? Open source alternatives are better, educationally and socially. Make the switch – many institutions have already done so and their faculty and students are very happy with the result.
— Tyler Durden Dec 3, 08:06 AM #
Blackboard’s strategy to “work with” open source software is merely that one may access courses created in Moodle or Sakai from within Blackboard’s interface. This is simply a survival tactic, given Moodle’s sharp growth among former Blackboard customers. It is ironic that Bb continues its legal fight against Desire2Learn (which became its largest competitor after Bb’s acquisition of WebCT), since the new NG (Next Generation) version of Bb merely borrows capability already inherent in Angel (another competitor that is making inroads with former Bb customers). Had Angel Learning been larger a couple of year ago, Bb would likely have sued it as well.
— Tony Dec 3, 09:19 AM #
OK, just so everyone knows, Microsoft invested in Bb ten years ago and has fully divested themselves from this mess in 2003. Bb took Bill’s money and ran. They have no current partnership in place, no dealings whatsoever.
I love how academics try to create paranoia by throwing Microsoft under the bus (again) with insane conspiracy theories.
— Franklin Dec 3, 09:25 AM #
1. Young’s point is that Bb’s behavior is similar/analogous to that of MS. That point is valid regardless of the current state of MS investments.
2. As of 2005, MS and Bb were still collaborating: “Blackboard Inc. and Microsoft announced today at the EDUCAUSE 2005 annual conference, a joint development project intended to help academic institutions achieve a higher degree of integration and interoperability between their respective portal and collaboration products. The project will result in tighter integration between The Microsoft Office System and The Blackboard Academic Suite™ via standards-based integration of The Blackboard Community System™ and Microsoft SharePoint Portal Server. “[http://www.blackboard.com/company/press/release.aspx?id=769016]
The idea that these companies are not working together is ludicrous. For the reasons outlined in the article, for better or worse, it makes sense they will continue to collaborate with and without capital investment from MS.
— Doug Johnson Dec 3, 10:09 AM #
What I find really sad is that Bb puts all this effort in to patents and suing to protect patents and on and on, basically because they say desire2learn copied them, and then they turn around and blatantly copy others. Did anyone watch the demo videos they have of the NG on their site? The interface they displayed for NG is a blatant rip-off of iGoogle. Then they posted some commercials online a while back that were basic rip-offs of the “I’m a PC, I’m a Mac” commercials. Of course, I really don’t have a problem with people making parodies of those commercials, or even of using Google for inspiration – but not when they have so much righteous indignation about people copying things that they say are their original ideas. Of course, they weren’t a company until 1997 and people were writing academic papers about the stuff in their patent in 1995…. but who cares about pesky facts like that?
Also, I hate it when people don’t have a point and they just throw out emotionally-charged statements like “insane conspiracy theories” to cover up the fact that they have no point. I see no theories being promoted in the comments so far.
— Matt Crosslin Dec 3, 10:44 AM #
Don’t blame Blackboard, they’re merely trying to profit off of a massively screwed-up patent system. The idea of software patents is absolutely ridiculous to begin with; whether they should exist at all is debatable. Blackboard does not deserve a patent for this nonsense. I remember talking with others back in 1993 for ways to use computers and networks to improve education. Most of what Blackboard does was very obvious to us and I’m sure many others.
There are many reforms that should take place. First among them should be the requirement that Blackboard prove that their patent would improve society.
Try to win an antitrust suit sometime. It’s not easy. Why shouldn’t the patent system be the same way?
— me Dec 3, 11:51 AM #
I remember sitting through a series of demos with vendors representing Bb, Desire2Learn, Angel, Moodle, and Sakai. We were considering either upgrading to the latest version of Bb or migrating to a new vendor altogether.
Bb was the last vendor to present, and what concerned me most was their complete lack of innovation, even with touting the latest “advances” in the newest version, there was actually very little that was new. Just some window-dressing and half-hearted overtures towards being “open” (e.g., Building Blocks). The fact they were serving educators seemed secondary to their desire to simply sell us on the latest upgrade. In my opinion, Angel had the most impressive CMS offering, closely followed by Moodle due to its true openness.
To make matters worse, the Bb vendor seemed to come across as simply assuming that we would upgrade by making a thinly veiled case that it’d be too difficult to do otherwise.
Interestingly, as I’ve been watching the latest drama with the US automakers, I can’t help but make parallels with Bb — lack of innovation, sense of entitlement, and tunnel-visioned approach towards trying to dominate the marketplace while stifling attempts by other competitors who actually have something new to offer that people want (and can afford). Worse, the US automakers, like Bb, have the mistaken assumption that just because they’re the biggest (bully) on the block that they can get away with all of this, then go complaining to the government / courts when they suddenly realize things aren’t going their way.
Such a shame that Bb is using our court system to enforce its anti-competitive behaviors. I hope Bb goes away. It’d be best for everyone in the marketplace.
— not impressed with Bb Dec 3, 12:49 PM #
If you take words like student, professor, assignment out of their patent, you have a very basic, permissions-based, content management system. The idea of web-based contnetn management was around long before Bb.
They should worry more about innovating instead of putting labels on things that already existed and trying to play the patent card. Their patent is reads like a parody of itself.
Onward to elearning 2.0 where students care about social networking, twitter, blogging and more relevant things than file sharing – with permissioning ! wow!
— Jon Corshen Dec 3, 07:18 PM #
First, the final verdict always comes from the courts whether you like it or not. Second, many will tell you the Patent Office has become too cozy with infringers, particularly large multinationals. Notice where former high-level PTO employees end up after leaving the PTO. Pay back?
Someone should explain to Mr. Feldstein that patents are useless unless you assert them.
— dinnerbell Dec 4, 07:46 AM #
In a list of “large multinationals” – where does Desire2Learn rank?
— Henry Schaffer Dec 4, 01:57 PM #
Can’t we all get along?
— Buddha Dec 4, 04:10 PM #
Hi. Good site.
— Santana Jan 8, 02:01 PM #