Desire2Learn Patent Page, Blackboard Violating Australian Law?
Aug 05, 2006
Commentary by Stephen Downes

The Blackboard story continues non-stop, so I'm throwing together an extra issue today to keep up. While I'm at it, I'm giving you a glimpse of my Saturday reading, a little more geeky than the usual weekday fare - but remember, this is a day off for me, so this is what I'm reading for fun.

Anyhow, first thing this morning came an email from Desire2Learn head John Baker letting me know about the company's patent information page. The text of the message reporduced here a few days ago may be found on the site, along with the full text of the patent and the letter of complaint. It also includes links to 477 pages of communication between Blackboard and the USPTO.

Michael Feldstein has been good enough to release his translation of the Blackboard claim from patentese to English. As you might expect, the claims made in the document are ridiculous. For example, here is the basic claim: "You have a system that is organized by courses. The system can be accessed by different users from different computers. Users can access multiple courses and can have different access privileges assigned to each course based on the roles of student, instructor, and/or administrator." Albert Ip comments.

Michael Feldstein has also issues a call for Wikipedia reviewers to ensure that the article is fair and conforms to Wikipedia's standards.

And finally, Feldstein is quoted in the first mainstream press article about the patent, published in the Kitchener Record in Desire2Learn's home town in Canada. Some outrageous statements from Matthew Small, Blackboard's general counsel: "This is not about reducing competition, it's not about hindering innovation, and it is something we think is in line with our duty to our clients to protect their investment in us as well as to protect the investment we've made in our technology." Yeah, right.

But the biggest story of the day might be this: according to a post in ITForum today (you can view it if you get a stipud login) Roger Atkinson writes, "Blackboard Inc's filings for Australian patents are numbered 2003263854, 2003263855 and 2005203324. Checking these, I find only cryptic details... it appears to me on initial checking that Blackboard Inc's Australian patents are 'applied for' or 'pending', and are not actually 'granted'."

If this is the case, Atkinson continues, then Blackboard may be in trouble. "Blackboard claims that '...patents corresponding with the U.S. patent have been issued in Australia, New Zealand and Singapore...' Under Australian law, 'It is an offence to falsely represent that an
article is patented or the subject of a patent in Australia."

Atkinson also heaps more info into the prior art record: "For example, check AJET and
ASCILITE Conference Proceedings for publications on LMSs that predate BB's patent application date. Using only those two sources
(and there are many other sources), I believe that there is heaps of evidence to shoot down BB's patent application in Australia."

In the ATutor Forum on the topic started today, Greg writes, "One thing I think all this uproar has doing, is bringing together the LMS industry both commercial and open source. And it also seems to be opening the eyes of users of the BB system. Even users of the system seem to agree that they do not want to be forced to use BB. Attempting to limit choice appears to have hit a nerve among some BB users. BB's patent may just backfire on them..."

Dave Cormier explains why software patents are evil: "This is what the blackboard patent does... it patents the learning management system equivalent of doors and windows. While Blackboard may have done different things with their software they did not invent the IDEA of 'doors and windows', they worked on ideas that already existed and added their own twist."
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Re: Desire2Learn Patent Page, Blackboard Violating Australian Law?

I have spoken to a person who is familiar with Australian IP law. After searching the relevant websites, he advised that the patent was granted as number 780,938 (equivalent to US patent 6988138) on 11/Aug/05. Blackboard has an additional 6 pending patent applications internationally. Under the Australian patents act, it is possible to seek a re-examination of a patent(section 97 of patents act 1990). There may be a fee associated with this request. However, this is clearly in the realm of patent lawyers. [Comment] [Permalink]

Re: Desire2Learn Patent Page, Blackboard Violating Australian Law?

Hi Stephen, Unfortunately, I can't find any evidence that Blackboard is breaking any Australian laws. My enquiries have found that Blackboard do indeed have a legal, granted and sealed patent in Australia, with includes a divisional application pending, as well as four conventional patents pending. The conventional patents are all currently open for public inspection, which means that we must lodge opposition immediately to prevent the patents from being granted. There is no cost for lodging such opposition prior to being granted under Section 27 of the National Examinations Manual. On the other hand, if we do not lodge such opposition in accordance with Section 27 and the patent is granted, the only way a patent can be challenged is by requesting a re-examination. This also involves writing in to the Commissioner, but incurs a $1300 non-refundable fee. Unfortunately, the patent granted to Blackboard in Australia falls into this category. I have provided more information here: [Comment] [Permalink]

Re: Desire2Learn Patent Page, Blackboard Violating Australian Law?

My company has been using an LMS since 2001 and the company that we deal with (KnowledgePlanet) has been in this business since 1995. The US patent office grants patents to anyone and everyone without checking into the authenticity of the claim of "orginial" creation. My parents are dealing with a situation like this with another patent holder. Luckily the other LMS companies (and I'm sure there are many bigger than Blackboard) are getting together to overturn this patent. It is just so sad that it comes down to litigation in the US to overturn a patent so there are other patents out there going unchallenged. [Comment] [Permalink]

Re: Desire2Learn Patent Page, Blackboard Violating Australian Law?

Who's bigger than blackboard? [Comment] [Permalink]

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