Alt talk to Blackboard's General Legal Council Matthew Small
Aug 31, 2006
Commentary by Stephen Downes
Morten Flate Paulsen writes in, "Your blog readers, following the BlackBoard discussion, may be interested in reading my article Two Decades of Online Sustainability. The article describes NKI Distance Education's development and use of LMS systems from the early start in 1985."



The one-sided Associated Press article about the Blackboard lawsuit has hit mainstream with its belated publication USA Today.



Additional coverage is provided in CNet News.com, where executive editor Mike Yamamoto blames the government bureaucrats for the problem.



I guess the old saw about not talking about things that are pending before the courts doesn't apply to Blackboard. Good thing, because Matthew Small says a bunch of things that should be noted in this interview with Britain's Association for Learning Technology (ALT) ( via Leon Cych).



"Therefore prior art after 30/6/1998, i.e. 12 months before the provisional filing date, is not relevant.... It [Blackboard] sees the Wikipedia History of VLEs as a great compendium, but not as a threat....



"Blackboard cannot speculate as to what the DOJ considered in its review.... Nor is it the case that the first public mention by Blackboard of the patent was the issue of its 27 July press release. For example, Blackboard had already begun to mark its products as being patented, from earlier in 2006 (see for example the footer of the press release of 1 March 2006 ); and knowledge of the
patent was 'out in the wild' several months before the press release, for example on a Moodle discussion board.



"I do not know the specifics of what Blackboard did for IMS in the late 1990s, but the inventions embodied in the patent were derived entirely by Blackboard inventors. The patent and the IMS work had nothing to do with one another. Did Blackboard notify IMS of its intention to make a patent application in 1999? I do not know. That would have been proprietary information, so I doubt it....



"We do not see this development as in any way 'game changing". We are not trying to put anyone out of business; reasonable royalties are all we want. We have a stated business policy of not going after individual universities, nor are we focusing on Open Source initiatives."



Eww. All slimy! I have to go wash my hands off now.



I mean, if they ask you, "Did you tell the DOJ?" and you didn't tell the DOJ, just say "no, we didn't." Don't weasel your way around it. And if you are asked, "Did you tell your IMS partners about the patent?" and you didn't, again, just say, "no, we didn't" instead of sliming your way through a couple paragraphs of evasions. And really, saying "I don't know" mere minutes after talking about how extensively you investigated all this? I mean, really now. Small should be ashamed.



Barry Dahl, commenting on the Small interview, writes, "They are quickly on their way to becoming the most hated vendor in high ed. Not that they care."




On the question of whether Blackboard informed IMS (which certainly appears to be a 'no', based on Small's comments) Michael Feldstein covers (with appropriate scepticism) a response from IMS CEO Rob Abel: "It's difficult for Blackboard or any other vendor to 'game' the standards process in IMS due to our IP policies." Well, maybe, but if the company simply ignores the policies, that's a different matter. As Feldstein says, "it is not so easy for standards bodies to protect themselves from abuse by aggressive patent holders."



Scott Leslie quite rightly takes the Blackboard blog to task for "impersonating a blog", given that its near total silence on the patent issue is "not what I'd call an 'authentic' engagement with the concerns of their readers/customers."




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