Content-type: text/html ~ Stephen's Web ~ Blackboard Patents the LMS

Stephen Downes

Knowledge, Learning, Community

Aug 03, 2006

Originally posted on Half an Hour, August 3, 2006.

This would be funny if it weren't so ridiculous: "The ever-brilliant US Patent and Trademark Office has apparently granted Blackboard a patent for...well...pretty much anything remotely related to learning management systems. As I read it, Blackboard basically owns the patent on any sort of groupware at all that is used for teaching purposes."

Blackboard Awarded Patent on e-Learning Technology, Blackboard August 1, 2006

Disclosure: I work with NRC IIT and am involved with the Synergic3 project described in this press release from Desire2Learn. I also support and have advcocated open source learning management systems.

As I commented earlier today, it was like poking a stick into an anthill. The Blackboard patent and subsequent action has prompted a furious reaction, one they must have anticipated (which is probably at least part of the reason for waiting from January 17, when the patent, to July 26, to make the announcement).

"In addition, patents corresponding with the U.S. patent have been issued in Australia, New Zealand and Singapore and are pending in the European Union, China, Japan, Canada, India, Israel, Mexico, South Korea, Hong Kong and Brazil."

To say that the reaction was negative would be to understate the matter considerably. Donald Clark writes, "I'd start selling Blackboard stock NOW!" Leonard Low writes, "Blackboard's claim of patent is both outrageous and repugnant." Dave Cormier writes, "In the span of a couple of weeks the educational landscape we've all come to know and care about has taken an awful beating. It seems that DOPA is taking away our open ed-web and blackweb is taking away our walled gardens." John P. Mayer writes, "How can you access the 'full power of the Internet' [as Blackboard says] if you are dealing with litigation fears and limitations of choice as a result?" Wesley Fryer exclaims "Crazy!" and asks, "Were the people in the US Patent Office really thinking clearly when they have this supposed 'patent' to Blackboard?"

In an item titled "Life among the clueless: the Blackboard patent" (best title of the day, by the way), Jay Cross ponders, "Maybe it was too big a nightmare for SumTotal, Saba, Plateau, and their brethren to think about. I imagine they are all in line for extortion, a la Blackberry."

Further, it was reported on my website, and also at the Inquirer that Blackboard has filed suit against Canadian company Desire2Learn over the patent (text of the filing document here). The Enquirer states, "the firm's CEO Michael Chasen said his firm has been a 'thought leader' in the e-learning industry." I, for one, beg to differ. Blackboard has resisted innovation as long as I have known the company; I remember Greg Ritter at a conference once trying to confince the company to use RSS feed, and now I expect the company to claim to have invented them.

In an widely distributed email during the D2L Users Conference Desire2Learn head John Baker wrote, "We are disappointed that Blackboard turned to the court system before discussing its claims with us. We intend to defend the action vigorously, but because we just received notice two business days ago, we are unable to comment further at this time." The letter does not yet appear on the D2L website. Baker, reports Alberta Essa, was "visibly shaken", and Blackboard "truly evil."

As stated on the Academic Commons website, the move has raised concerns that action may also be taken against open source projects Moodle and Sakai. As Alfred Essa observes, "By filing a patent infringement lawsuit against Desire2Learn Blackboard has at the same time fired a shot across the bow of open source projects such as Moodle, Sakai, and .LRN, which are slowly emerging as disruptive innovations in the elearning space. In the long run Blackboard knows it can't win on product quality or innovation. Therefore, it will exploit patents as its WMD."

And he adds, in my view correctly, "What is Blackboard's diabolical strategy to crush open source? I don't believe they will directly go after the open source projects. They don't need to. Blackboard just needs to create enough FUD among lawyers, whose entire frame of reference is built around litigation avoidance, so that new institutions interested in adopting an open source solution just won't go there."

"I'm not worried," writes Moodle founder Martin Dougiamas on a Moodle forum (stupid login required). "I'm not worried as I think there is plenty of prior art." The open source communiy has already started fighting back. A Wikipedia article on the history of Virtual Learning Environment (VLE) development has been started, essentially the same as the page at Moodle.

Martin Langhoff writes on a Moodle forum (stupid login required, sorry), "After a quick check on the ATutor forums, and seeing there was no discussion about the patents, I've gotten in touch with Greg Gay -- he says: "If you are looking for evidence of LMS type apps prior to 1999, here's a study we did early that year. We'll be in contact with the patent office in Canada, to make sure no patent is issued here. We're onboard on this too." and I think that study is good stuff and having them on board is great. Some more prior art has been posted at Seb Schmoller talks about a Learning to Teach Online Course he and others developed in 1997 or 1998.

Some people see the positive in the move. Alex Reid ponders, "Perhaps Blackboard's patent is the evil impetus to move us away from a "course-based system" of 'online courses:' the bad idea that they want to claim as their fundamental intellectual property." As Scott Wilson suggests, "I hope we can use this as an opportunity...perhaps Tony Karrer is correct and that we are at the point of technology disruption, and we'll see the LMS displaced by simpler technologies with different non-functional characteristics (following the typical technology pattern)."

Stephen Downes -- Web-Based Courses: The Assiniboine Model August 1, 2006

OK, let's be clear now. I have one last thing to say about this Blackboard patent. Yeah, I know, half the educational community was working on the LMS in the 1990s. But for me, this Blackboard patent feels pretty personal. Here's why.

In the Online Journal of Distance Learning Administration, Volume 2, Number 2, Summer, 1999, I published this paper based on a presentation I had originally made in 1997. It describes how to design and build a learning management system. It goes into a great deal of detail, including things like online registration, tests and exams, communications, personalized home pages, and much more. The paper, moreover, describes code I actually built at Assiniboine Community College and which was used to deliver a number of courses at the college.

Now, the Blackboard patent was filed June 30, 2000. Here it is. Read both and judge for yourself. But let me say this: what Blackboard claims to have invented in 2000 is almost an exact clone of what I described in 1997 and published in 1999. Now Blackboard may be suing a company today - a Canadian company, naturally. But my response to Blackboard is this: where do you get off taking my invention, which I shared freely with the rest of the world, in order to advance learning, and claiming it as your own? Is this the model of learning to which you subscribe, to use the legal system to deny learning to people who cannot afford it?


Stephen Downes -- Will Richardson's Business Model August 1, 2006

I am home from Bogota. Colombia is a fascinating country I will not soon forget, nor would I want to. Yes, there is poverty and crime, a lot, but the Colombia I saw is a whole lot more than that, as I will show you in the days ahead.

I talked with Diego a lot about this as we wandered through the back streets of the Candelaria (More). Appropriately, today seems to be about the corporate side of online learning. In this article, written this morning before following up on all the Blackboard kerfuffle, I wrote:

"The person who has cut into line ahead of you may appear to have gained something at your expense. My my belief is that a life led thusly is not one that profits. It is a life led solitary and alone. The essence of living in a community is to respect the interests, rights and desires of the other members. Those who disregard that essence soon find themselves excluded from the community, and from the benefits to be derived from the community."

This applies to people, it applies to corporations, and it applies to life. Blackboard's action tells us more about what sort of company Blackboard has become than anything else. Blackboard has turned its back on those who have built it up from scratch. It has embraced the corporate world and the corporate ethos. It's a sad and disgraceful day for learning.

Sorry about the typos. I'm jet-lagged, and I have mixed nuts in my keyboard, which is why my 8 key (among others) is stuck (the perils of travel on crowded airplanes).

Bill Fitzgerald -- Blackboard Granted Patent on Series of Tubes, August 2, 2006

Keeping up with the discussion on the Blackboard patent as Bill Fitzgerald gives us our headline of the day (via McToonish).

Alfred Essa reports that he has contacted EFF "to see if we can get the Blackboard Patent listed under the Patent Busting Project" and advises "if any readers have connections to the EFF, let's get this on their radar." He also cites Brad Fell on abolishing software patents.

Dave Cormier continues to try to pull together an online meeting on the issue (but his emails to Blackboard are bouncing) and meanwhile has posted the link to the proposed Canadian patent. But even if Blackboard representatives don't show, it might be a good idea to be in on the Sunday Ed Tech Talk meeting and to let your voice be heard.

The Wikipedia page of prior art, mentions Feldstein, is gaining steam. Get your contributions in. He also references James Farmer's patent information page in his eLibrary, but it was so slow as to be unreadable.

Trey Martindale offers a short remark and links to the Slashdot discussion. Not surprisingly, the Slashdotters are not amused. As guisar writes, "I hope that not only are these patents denied but that Blackboard and WebCT get tied up in litigation until they go Chapter 11. If any market should be supportive of Open Source, I think the on-line learning marketplace is a natural. Having Blackboard and WebCT dominate is not good for us." Now there's some publicity money just can't buy.

Scott Leslie, who was on holiday when the story broke (hey, at least you weren't in Bogota!) comments "If you can beat them, sue them, eh?" He lists some prior art and adds, "at Edutools we can actually show a continuous development of the feature set that we use to compare these products from 1996 until our current one."

Meanwhile, ATS Blog cites a Moodle discussion and comments, "It is sometimes disturbing to watch the trends in e-learning in the United States vs. Australia, Canada, or Europe."

On Desire2Blog Barry Dahl writes, "Earlier I said I was not a hater. Oops, turns out that I HATE Blackboard." Heh. Michael Feldstein (who showed up with comments in a locked-down Chronicle article today) links to Blackboard's new defensive FAQ and asks "is Blackboard feeling the heat already?" At least the Chronicle covered it - the rest of the education press - University Business, Insider Higher Ed, eSchool News, all of them, are missing in action.

There were also short posts from Rich Schweir, Robert Paterson, Will Richardson, George Siemens and Graham Attwell.

One competitor that appears to be relatively unscathed by the fray is the open source product ELGG. Joan Vinall-Cox writes, "I believe that this is the corporate system about to topple from its own weight. I teach using an Elgg Community blog and a course wiki. I used to use WebCT. I prefer the blog and wiki as teaching tools; they're simpler to use, much, much cheaper, and students learn how to use software they might encounter again in their futures." And Harold Jarche notes that ELGG does not contain any of the 44 features claimed in the Blackboard patent.

I have wonder whether it wasn't really the best time for NIIT to acquire Element K. Heh.

Graham Attwell -- Blackboard are Not Alone August 3, 2006

[link] OLDaily full coverage: because it's a bit hard to follow, full coverage of the Blackboard case is being provided on a separate page (full coverage will continue on OLDaily as well, don't worry). Click here for all coverage in one handy chronological list.

The patent fight has widened now that it has come to light that SAP have also filed for a series of learning management patents, including a 'course editor', 'e-learning authoring tool' and 'e-learning system'. The applications were filed mostly in 2004 and 2005.

Ray Corrigan outlines what he expects the impact on the Open University will be. "The patent is nonsense on stilts and generically could be interpreted to describe what we have been doing here at the Open University for at least a generation and certainly for the 11 years that I've been here. I suspect Centrinity's FirstClass will be on Blackboard's lawyers' list of targets as well as the open source Moodle system the OU are adopting."

He also reports on some of Blackboard's previous nastiness, citing Jennifer Jenkins's write up of the case at the Chilling Effects Clearinghouse (it was also covered here at OLDaily).

Mark Oehlert offers some criticism of the patent document and, among other sites, links to the New York Times stock watch page for Blackboard. Looking at it a little more closely, I notice that Blackboard executives were dumping thousands of shares back in May. One wonders why.

Graham Attwell points to an item from that same month in which, and I quote, "Campus card solutions provider Blackboard is getting into the laundry business. It has added the eSuds online laundry service to its product line, giving USA Technologies access to hundreds of Blackboard's colleges and universities." Weird. Attwell comments, "I think it is time to return e-learning to the education sector - not a company which washes its dirty washing in public."

David Jnnings points to the Wikipedia page, where more and more contributions of prior art are piling up.

Discussion in an Advanced Distributed Learning forum. As Alan Jeffries observes, "Indeed - I note that Bb didn't immediately go after Docent, Saba, etc.. I guess Bb are the SCO Group of e-learning now. An obvious, cheap-shot money-making tactic. Hearsay is that D2L will be fighting the suit. In a fair world that should serve as a reasonable test-case to limit some of the more absurd moves of the USPO recently."

Bryan Alexander has been blogging about the patent at the NITLE Liberal Education Today (here, here, here). He also adds a couple of unrelated links to Lawrence Lessig and J.D. Lasica (to namedrop? to draw their attention? You won't do that with a Yahoo search redirect link!).

Karyn Romeis expresses concern about the contraditions and loopholes. Roger Goodson comments briefly, as does Christopher Wigginton.

Howard Rheingold Howard Rheingold has picked up the story. "Blackboard's actions are shameful, greedy, bogus, and have the potential for retarding the development of online learning throughout the world."

Leigh Blackall mentions the case in TALO. And Deon Metelski got tired of hearing about Blackboard and decided to take his mind off it by starting a blog, Tools for School. Silver lining?

Mike Malloch -- 41 figures From the BlackBoard Patent August 4, 2006

[link] Mike Malloch has performed a valuble service, extracting the 41 figures in the Blackboard patent and posting them on Flickr.

He adds, "let me just say that having spent the summer of 1998 in BlackBoard's DC offices (seconded there from the UK to do some IMS work on metadata), and having spent a lot of that time interacting with the architects of BlackBoards subsequent systems, I know that these guys did not 'invent' the VLE, and that they knew they weren't 'inventing' the VLE."

I should point out, in response to his comments, that it's not simply the learning management system that needs to be defended here. Yes, some of us don't care about the LMS - I am among them. I see the future as being some sort of PLE. But what stops a company like Blackboard from coming along and saying they have invented the PLE?

See, the problem is, learning technology has always been a collaborative endeavour by a community of researchers and practitioners, and we have invented, and we have through out practices and our conduct explicitly eeschewed the idea that this domain could ever be owned by one company.

Riina Vuorikari of the FLOSSE Posse calls the Blackboard patent a showcase demonstration on the absurdity of software patents and reminds readers of the no learning patents campaign against software patents in Europe that has been underway for some time.

Dirk Herr-Hoyman sends this nice set of Blackboard is evil photos, posted on Flickr. You should send your own anti-Blackboard art to Bertbrat on Flickr.

Joseph Hart describes his own experiences with LMSs before Blackboard and posts some of my coverage of the issue. Lanny Arvin finds the patent "weird" and describes his own experiences with products such as FirstClass (which I also used), WebNotes and Allaire Forums (which again I used as well). And Christian Long thinks about patenting learning.

Alfred Essa argues that Blackboard's FAQ is "is, at best, misleading and, at worst, disingenuous." I have other words for it. But following Essa, we can see that while Blackboard's argument may be applied to copyright code, it does not apply to the concept of the LMS. "We know that Desire2Learn didn't copy Blackboard's computer code. We come back then to our original questions, which we still haven't answered." So what does Blackboard think it's protecting that it invented?

Michael Feldstein is translating Backboard's patents into plain English and will post the results soon; "When you see what they are actually claiming to have invented, you will be well and truly gobsmacked." I'm already gobsmacked.

Desire2Learn Patent Page, Blackboard Violating Australian Law?, August 5, 2006

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."

Stephen Downes Stephen Downes, Casselman, Canada

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