A while back, IMS CEO Rob Abel was kind enough to comment on my post regarding the potential impact of patents on educational technology standards. As part of his summary at the end of the comment, he wrote,
It’s difficult for Blackboard or any other vendor to “game” the standards process in IMS due to our IP policies. So, in fact the standards organizations are a great way to bring issues like this out so they can be known – and, in the case of standards, potentially go in a different direction if one organization’s IP is encumbering. The standards become the known ground that vendors must share without claims.
While I appreciate Mr. Abel’s effort in sharing his thoughts, and while I am glad to hear his optimism, I’m afraid that recent history with technology patents shows that it is not so easy for standards bodies to protect themselves from abuse by aggressive patent holders.Consider the case of Rambus. The FTC recently concluded the following:
We find that Rambus engaged in exclusionary conduct that significantly contributed to its acquisition of monopoly power in four related markets. By hiding the potential that Rambus would be able to impose royalty obligations of its own choosing, and by silently using JEDEC to assemble a patent portfolio to cover the SDRAM and DDR SDRAM standards, Rambus’s conduct significantly contributed to JEDEC’s choice of Rambus’s technologies for incorporation in the JEDEC DRAM standards and to JEDEC’s failure to secure assurances regarding future royalty rates � which, in turn, significantly contributed to Rambus’s acquisition of monopoly power.
Rambus claims that the superiority of its patented technologies was responsible for their inclusion in JEDEC’s DRAM standards. These claims are not established by the record. Nor does the record support Rambus’s argument that, even after two JEDEC standards were adopted and substantial switching costs had accrued, JEDEC and its participants were not locked into the standards. Rambus now claims that we can and should blind ourselves to the link between its conduct and JEDEC’s adoption of the SDRAM and DDR SDRAM standards, as well as to the link between JEDEC’s standard-setting process and Rambus’s acquisition of monopoly power. These claims fail, both as a matter of fact and as a matter of law. To hold otherwise would be to allow Rambus to exercise monopoly power gained through exclusionary conduct. We cannot abide that result, given the substantial competitive harm that Rambus’s course of deceptive conduct has inflicted.
In other words, Rambus tricked its competitors into ratifying standards that, if implemented, would infringe on Rambus’ patents. Now, like the IMS, JEDEC has a patent disclosure policy. In fact, violation of that policy is exactly the issue behind the FTC charges. So in the end, it appears that Rambus will get what they have coming to them. (The ruling was this month.) However, it took years of litigation to reach that point. In the meantime, JEDEC’s reputation as a standards body was shredded Norwood, vice president of research for Gartner Dataquest, has commented,
“Look at what a sorry state those DRAM vendors have got themselves into. Consequently, what the industry has lost is its faith in the standardization process, such as DRAM standards-setting activities at Jedec. Memory companies are now so weary of Jedec. That’s a real detriment to the whole industry.”
Now let’s jump back to online learning. This month the IMS will be having a meeting about the forthcoming Common Cartridge standard. How confident can we be that Rob Abel is right and that the IMS isn’t being “gamed” to encourage vendors to adopt technologies that will infringe on somebody’s patent? We’ve been (justifiably) picking on Blackboard a lot, so let’s choose another target for our example. Consider the following Pearson Education patents:
- #6,449,627: Volume Management Method and System for a Compilation of Content
- #6,661,840: Method and System for Removing Content Entity Object in a Hierarchically Structured Content Object Stored in a Database
- #7,007,034: File Structure for Storing Content Objects in a Data Repository
- #7,043,488: Method and System for Storing Hierarchical Content Objects in a Data Repository
- #7,089,239: Method and System for Preventing Mutually Exclusive Content Entities Stored in a Data Repository to be Included in the Same Compilation of Content
- Did Pearson ever file a patent disclosure statement to the IMS for Common Cartridge?
- If not, should they have?
- Did Blackboard ever file a disclosure statement for Common Cartridge or any other standard?
- Has anyone ever filed patent disclosure statements with the IMS and, if so, are these available to the public?
I sincerely hope that the IMS really does have this situation well in-hand. Because if it doesn’t, the potential damage to the progress of learning technologies could be very significant.