Michael and several other bloggers were the voice for this activity while many of us had to work silently developing legal responses to the patent. In a sense Michael has given a public voice to many of the private discussions that were happening “off the grid”.

In doing his job as a journalist over the past six months, I know that Michael has had sensitive information which he handled with great professionalism. As a big part of the public face of this activity – Michael took his responsibility very seriously as any journalist should.

So while we celebrate the new “transparency” and the addition to many new and exciting voices to the mix – I just want to personally acknowledge and thank Michael for his and dedication to this issue for the past six months.

I think that when the history of these past few weeks is written – the overriding thing that we will remember is *not* that voices were raised or there was some rhetoric or which metaphors were used and whether or not and to what extent some folks found it shocking or offensive….

Instead, I think that in the fullness of time, we will realize that this was mostly about transparency and how that transparency of the past week ultimately will have moved the discussions forward in a positive direction.

Conversations have been going on and there has been conflict and discussion simmering under the surface since June when this all started. I have been part of many small discussions and frankly I am happy that these discussions are happening in a more public way now. A critical element to allow these discussions to move into the public space (meetings, blogs, etc) was the filing of the re-exam at the USPTO. Now that the filing has happened – the open discussion has started.

Part of the key to transparency is that it is *transparent* – we get to see what is going on – warts and all. Like many conflicts – this is not simple, nor cut and dried – there are rough edges here and there – we have to accept that. We should not rail against the rough edges – we should be happy that we are finally all talking about these things in a way that we can all watch as it happens.

I have been involved in lots of discussions over the past six months and really have a lot of respect for everyone involved including the Sakai Board, SFLC, Martin Dougiamas, Greg Gay, Desire2Learn, and Blackboard. What we are doing here is not easy – there is no *book* that tells us the answers – we are working through the issues together even though on the surface it seems like we are at odds. Even with the public rhetoric of the past week, the discussions are still continuing and I am hopeful that a solution may yet emerge.

So I encourage folks to take a somewhat longer view here and appreciate the level of maturity that this field has reached which makes this kind of discussion possible.

Transparency is our right to see what is going on – that is a basic right and a value of our communities – transparency does not guarantee that you will always like what you see.

AFAICS, the reason Eben is acting like that is that there are many companies that are considering threatening FOSS with patents, and they are taking a wait-and-see approach before exposing themselves.
Given the situation, Eben (who is an outstanding lawyer and lecturer in IP law) needs to make an example of the first company who tries anything.

Blackboard have been a bit foolish in that their patent is weak, and the educational community very strong. And that their timing puts them right in Eben Moglen’s cross-hairs. So he wants to make sure they are going to get trounced at the USPTO, the court and the media.

Listen carefully when he says that FOSS is being threatened by a company with huge resources… that is not Blackboard. That is exactly who he is talking to.

It doesn’t make me happy to be part of this larger war, but in any case, it’s good to be part of one of the easy scare-the-wits-out-of-them battles.

(To clarify: I am one of the core developers in the Moodle project. Your blog post inspired me to write the above, originally posted at http://moodle.org/mod/forum/discuss.php?d=60794#275627 )

Wytze,
Thanks for the note. Eben or Richard from SFLC would be best to answer the question about not sharing materials with D2L, of course.

But I’ll give you what I know of the background. Ever heard of the word “estoppel”? I hadn’t either till very recently. I don’t like the wikipedia definition, so here is another, from http://www.lectlaw.com/def/e040.htm – “A bar which precludes someone from denying the truth of a fact which has been determined in an official proceeding or by an authoritative body.” But, as the entry goes on to say, it really just means “stopped” or “blocked” but with the freight of a bunch of legal precedents and contexts thrown in.

Now, in the case here, it is of interest because it means that someone is effectively “estopped” or blocked from using prior art in their defense in a lawsuit if that prior art has been raised in a separate proceeding, like a re-examination, with the US patent office and found not invalidating. If a piece of prior art has been examined by the USPTO and found wanting, in other words, it loses most if not all of its value in a court of law, the place where you would be sued, in this case by BB, for infringement of their patent.

In other words: prior art can be “used up” and rendered pretty much useless if it is used in a re-exam and the USPTO doesn’t buy that it is real, applicable prior art.

Next, we need to know the difference between the ways D2L and SFLC are proceeding with their separate re-exams. I’m sure there are lots of nuances here, and I might refer you to Michael’s recent blog on the differences between “ex parte” and “inter partes” re-examinations. I haven’t read it, but Michael usually does a good job with stuff like this. Anyway, D2L is going the inter partes route. SFLC is going the ex parte route. There are potential collisions in prior art space because of this. The way I understand it, SFLC is very, very concerned that D2L will use up lots of perfectly good prior art and not get what they, or we, want: the patent rendered void, or crippled beyond our caring.

Because they are embarked on an inter partes re-exam, D2L is obligated (part of the law in doing inter partes; no choice) to use all the prior art they are aware of during the re-exam. They could, if they end up unsuccessful, use up a lot of prior art in their one shot. They could effectively estopp (block) that prior art from being used in another context. There are, again, lots of details here and ways I could have stated this incorrectly, but that’s the gist.

Now, SFLC husbands prior art, using just a little at a time in their ex parte re-exam. That way, if they don’t get the desired result first time through, they go back, and use a different, perhaps better,(because it’s now tuned with info from the first re-exam) piece of prior art the next time. In ex parte, there is no requirement to shoot all your bullets the first time through.

I think this difference in strategies is at the base of the concerns and the resultant decision to both try and persuade D2L to not go the route they’re going, and to not get the SFLC prior art all mixed up with the D2L prior art by sharing it with D2L prior to the filing. See Eben’s note from earlier today on this thread.

I certainly hope D2L is successful. We all do. But the expert counsel we have gone to for advice and help think the way they (SFLC) are going about this is simply better. There are arguments on both sides on this one, like any complicated issue, but I think the SFLC arguments make sense. And they have done this before, this re-exam using ex parte, successfully.
Hope that helps,

Joseph