That’s right. In 2004, eCollege was granted a patent that, as far as I can tell, is for
- A gradebook
- An online syllabus
- A private student journal
Now, before you panic, ask yourself why eCollege has not sued anyone in the two years since they acquired the patent. The truth is that there are all kinds of reasons to file for a patent that you may never intend to litigate. In fact, one reason that many technology companies today are almost required to file for patents whenever they can is to build a defense against exactly the kind of action that Blackboard is taking against Desire2Learn.First things first. Let’s get the basics of the patent down. Here’s the abstract:
An on-line educational system including on-line gradebook and electronic journal features. An instructor builds a course on-line containing identification of assignments and educational materials, which are compiled into an on-line electronic syllabus. Users enrolled in the course may access the electronic syllabus and perform various functions with the on-line educational system in order to participate in the on-line educational course. The instructor can post grade information relating to the users’ assignments into an on-line gradebook, which the users can then access to view the grade information for their assignments. Users can also enter information into an electronic journal and specify which portions of the journal the instructor may view.
In essence, it is an online gradebook with a few bells and whistles. That’s very clear. Furthermore, this is one of three currently held U.S. patents by eCollege, in addition to the ten or so that they have pending. What good does the patent do them if they are not asserting it through infringement litigation? There are several good answers to this question, but the one I want to focus on is defense against infringement litigation from other companies. If, for example, Blackboard were to sue eCollege for infringement on their patent, eCollege could counter-sue for infringement on their own patents. It’s something like the legal version of the Mutually Assured Destruction (MAD) theory during the Cold War. (For the young ‘uns in the crowd, MAD was the idea that building up an arsenal of strategic nuclear weapons would actually deter war since nobody would want armageddon.)
So does this mean that eCollege is a good guy who is only holding patents as defensive weapons? Not necessarily. eCollege could cross-license with Blackboard and create a “patent pool” in which anyone who wants to build an LMS with roles and permissions (Blackboard’s patent) and a gradebook (eCollege’s patent) would have to pay royalties to both companies. (I emphasize that I have no information that this is what eCollege is, in fact, doing.) Such an arrangement is called “patent stacking.” What you get, rather than a monopoly, is a duopoly in which eCollege and Blackboard effectively own every aspect of Learning Mangement Systems. And since both companies are filing for multiple broad patents, their ability to control the market would get stronger and stronger. Imagine D2L going up against this hypothetical pool. Even if they managed to invalidate one patent, Blackboard and/or eCollege could litigate the others, crushing D2L under the burden of legal fees as far as the eye can see.
OK. Now you can panic.
This is why invalidating Blackboard’s current patent is not sufficient to solve the industry’s problems. The best solution would be for Blackboard, eCollege, and other firms that may be holding relevant patents to all offer royalty-free licenses, guaranteeing that the patents will only be used defensively. And the only way to do that is to ensure that their costs for taking the infringement litigation route exceed their revenues from it. One way to do that is through a consumer awareness campaign, convincing the purchasing decision-makers that it is in their institutions’ best interest to oppose patent litigation and to boycott companies that resort to it (and reward companies that offer royalty-free licensing).