The Blackboard Patent Pledge

I’m late to the party on the pledge news for a variety of reasons (not the least of which is a recalcitrant DNS server out there in the ether that denied me access to my new blog site for the better part of the last two days…grr). It is gratifying to see that my absence really didn’t matter much. A lot has been written about this in the past few days and I don’t really have anything new to add.

If you’re playing catch-up on the issue, you’ll want to start with Blackboard’s own page on the patent pledge. Equally important to read and read carefully is the joint statement by the EDUCAUSE and Sakai Foundation boards in response. In posting the letter to the Saki listserv, Sakai Foundation Board Chairman John Norman introduced it with the following warning:

Bb announced an Open Source Patent pledge today. www.blackboard.com

In their press release they refer to ‘collaboration’ with Sakai and Educause. Our ‘collaboration’ was to try make it as useful as possible. Since Bb quote selectively from our statement, I reproduce it in full below. It will go up on the Sakai website later today.

I recommend taking John at his word and read the whole letter, in part because it is very well-crafted and encapsulates a lot of the sentiments–both postive and negative–that have been expressed about the pledge since the announcement. For your convenience, I have reproduced the letter in its entirety “below the fold” in this post.

Inside Higher Education has a good piece on the story this morning, with quotes from many of the usual suspects as well as a few unusual ones. THE Journal has some good, in-depth quotes from Sakai and Blackboard representatives. Slashdot has picked up the story as well, and includes a few interesting and informative comments. Not covered in any of these are comments from the bloggers you’ll always want to read on this topic, including (but not limited to) Seb, Barry, and Stephen. Also interesting is Elgg developer Ben Werdmuller’s (re)assertion that Bb’s patent wouldn’t cover Elgg anyway.

Since the community as gotten so good at responding to these issues, I think we should take better advantage of the whole RSS thing and consolidate the various comments for easier consumption. If people blogging on this topic would include “edupatents” as a tag or somewhere in the body of their post text, I would be happy to set up an aggregator on e-Literate that scoops up those posts (and would encourage others to do the same). Let me know if there is interest in this; it would be pretty easy for me to do.

Now, if you haven’t seen the EDUCAUSE/Sakai statement, keep reading:

The Boards of Directors of the Sakai Foundation and of EDUCAUSE recognize the patent pledge announced on February 1, 2007 by Blackboard as a step in a more positive direction for the community, to the extent that it offers some comfort to a portion of the academic community that uses open source or homegrown 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, EDUCAUSE and Sakai worked to gain a pledge that Blackboard would never take legal action for infringement against a college or university using another competing product. While Blackboard ultimately agrees that such actions are not in its best interest from a customer relations viewpoint, it could not agree for reasons related to its existing legal case. Our organizations will remain vigilant on this point as protecting our member institutions
is of top priority.

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 number 6,988,138 is overly broad, and that the U.S. Patent and Trademark Office (USPTO) erred in granting it to Blackboard. Furthermore, we believe that this conclusion will ultimately be decided by the re-examination of this patent through the USPTO and in the current litigation.

We hope that all of the organizations and individuals interested in educational technology will continue to focus our collective energies on improving software, and system and data interoperability with the ultimate goal of delivering truly innovative solutions to all teachers and learners.

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About Michael Feldstein

Michael Feldstein is co-Publisher of e-Literate, co-Producer of e-Literate TV, and Partner in MindWires Consulting. For more information, see his profile page.
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