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On 26 July 2006 Blackboard announced that it had been awarded a patent in the U.S.A. on Internet-based education support systems and methods
Perhaps understandably the Blackboard patent and its many patents pending both in the United States and in other jurisdictions has caused concern in the varied open source e-learning community. It should be clear, however, that nothing untoward has occurred. Blackboard appears to be following commonly accepted patent portfolio procedures as practised in the U.S.A. and elsewhere.
Sometimes patents are sought for defensive purposes. This is common amongst large patent holding companies such as IBM, Sun, or even the BBC. In some cases, such as IBM, Sun and others, explicit undertakings are given to ensure that many of the patents held will never be exercised against an open source software project.
In cases where software patents may be challenged (as also may yet be the case in U.S.A.), the practice is to challenge the granting of the patent on the grounds of prior art. If it can be shown that the novelty for which a patent has been granted was already in use elsewhere prior to the patent's filing, then the patent is invalidated.
In the USA, and elsewhere, it is possible to challenge the validity of a granted patent. One of the most common criteria used for such challenges is that the invention is not novel. This term means that the invention has been used, or has been described in a publication, prior to the date when the patent was applied for. If this can be proved, then the patent is declared invalid. It may well turn out that in this case (as is the case with many US software patents) the invention described in the patent is not novel. However, such a case would be brought only in the jurisdictions where the patent had successfully been granted.
It will not have escaped notice, from the Blackboard announcement and elsewhere, that patents are now pending in many other jurisdictions including the European Union. It is our understanding that Blackboard's initial filing in the European Union was stalled by the European Patent Office in late January 2004. It was then resubmitted in an altered form in mid-February 2004. This resubmission has yet to pass into the national phase of granting in the UK, which implies that it has yet to be fully examined at the EU level.
What will be the impact of the Blackboard patent?
In the short term, obviously, there is increased anxiety in many quarters. The need for solid legal advice is such that the Sakai Foundation has announced that is retaining the services of the Software Freedom Law Center (SFLC), directed by Eben Moglen, to evaluate the impact on the educational community of the Blackboard patent and to advise on legal matters regarding the patent.
Meanwhile a useful community resource in the process of being created is the Wikipedia page on the History of Virtual Learning Environments.
This document was not produced by lawyers, and is not legal advice.
On 1 February 2007, Blackboard publicly pledged not to assert it's patents ‘against the development, use or distribution of Open Source Software or Home-Grown Systems to the extent that such Open Source Software and Home-Grown Systems are not Bundled with proprietary software’.
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