A number of people responding to the Chronicle's article on the Elsevier patent asked me to write something about it. For those of you who haven't been following ed tech for at least a decade or just haven't been following e-Literate for that long, the main reason that people who weren't my mom started reading this blog in significant numbers was the work I did explaining the patent that Blackboard was asserting against D2L, the mechanics and progress of the lawsuit and, more generally, how software patents work and why they are bad for ed tech. So I felt obliged to respond to requests for my thoughts regarding the Elsevier patent. I published them in my reaction in our column at the Chronicle. Since it's behind their pay wall, I'll briefly summarize the points here:
- For a variety of reasons related to the legal complexities of software patents, we can't really know the legal scope of Elsevier's patent unless and until it goes to trial.
- Trying to figure out what the patent means before is not only hard but could put you and your employer at increased legal risk, so read it at your own peril. Seriously.
- Elsevier's public statements indicate that they might be willing to assert it (i.e., sue somebody for infringement of it).
- Whatever your general opinion of software patents may be, offensive use of them in education is really bad because the companies are too small and the profit margins too thin to support that kind of legal activity (in contrast to, say, the mobile phone and pharmaceutical industries). Offensive use of software patents could destroy progress and innovation in educational software.
- Inevitably, more and more leaders of education-related companies—including Elsevier's current CEO—were not around during the Blackboard patent suit and have not seen the massive brand damage that Blackboard did to itself in the process. The danger of patent assertion is increasing because the deterrent is fading.
- There are few legal tools available to deter patent assertion. The best tool universities have is economic.
I ended by calling for leaders of educational institutions to gather together and sign a pledge that they would not procure products from companies that assert education-related software patents. But I don't have a lot of hope that it will happen. After all, if they weren't sufficiently motivated to take collective action during and immediately after the Blackboard suit, why would they be now? This doesn't mean that they will fail to act in the face of an actual patent suit. Schools voted with their feet in response to Blackboard. In fact, the brand damage was so profound that I believe it is impacting the company's sales to this day, even though the CEO during the suit left a long time ago and the legal architect of the suit has left the company as well. There will be consequences for companies that assert educational software patents. But there is no visible deterrent for companies that do not remember Blackboard v. Desire2Learn. Blackboard spent a lot of money and retarded the LMS market for a long time before they finally admitted defeat.
This is an area where vendors could show leadership. As I mentioned in the piece, the fact that educational software patents exist means that there is strong motivation for companies to file for patents that they can use in defensive counter-suits, even if they have no plans to ever use them offensively. D2L didn't have any patents at the time of the lawsuit, but I would be shocked if they didn't have any today for exactly this reason.
The right thing for vendors to do here is to create what's known as a patent pool. Any patent owner who contributes to the pool pledges to only use that patent for defensive counter-suits. In return, the owner also gets to use any other patents in the pool for defensive purposes. The rules would be a little more complex to work out than a typical patent pool because there is no single well-defined software category or product that they are protecting (like Linux or video streaming technologies, for example). But it could be done. And it would only take two or three players to get it rolling. The most obvious candidate to lead this is Blackboard. They have a strong need to define themselves as "not your father's Blackboard" and probably still have patents. If they could get Pearson, McGraw Hill Education, or D2L at the table and hammer out the structure for a patent pool, then they could begin to invite other players in.
In an era where algorithms are increasingly important differentiators in educational software, we can expect patents to proliferate and the temptation to assert them to grow accordingly. We really need corporate leaders to step up and demonstrate their moral commitment to protecting education from this growing threat. I'd love to see this happen and would love to help make it happen.