P.S. Software Patents are Evil.
P.P.S. I'm not worried as I think there is plenty of prior art.
This whole thing shows exactly why patents have become almost ridiculous.
Blackboard filed the patent in June 2000 when the "threat" of open source LMS systems was not as apparent as it is now. So I'm not so sure it was aimed at open source systems at the time it was filed. Besides there are numerous proprietary systems competing with Blackboard. A recent survey on the LMS market from Bersin & Associates analyses 22 vendors, none open source as far as I can tell. It will be very interesting to hear their reactions to this recent development.
This, to me, is almost equivalent to Microsoft trying to patent the concept of a web browser. If they did that, they would have gotten hit with a lot (more) anti-competition monopoly charges. Surely, there has got to be some place that we, as a Moodle community, can file complaints about this patent. Certainly, it crosses the line. Just look at the first line of the abstract:
"A system and methods for implementing education online by providing institutions with the means for allowing the creation of courses to be taken by students online"
If ANYONE doubts the fact that BlackBoard is afraid of competition, and you weren't convinced by the fact that they have a habit of purchasing any competitors (WebCT was not the first), then this should prove something to you now.
I've always thought that the "merger" of BlackWeb smacked of something sinister. I wonder if they used this patent as leverage to "convince" WebCT to sell out.
I suspect that Blackboard is sueing Desire2Learn as an "easy victim" - they'll drain D2L of financial reserves and establish a legal precedent that they can use in subsequent cases against other entities.
Blackboard also purchased a similar product called Prometheus in about May of 2003 and converted users over to Blackboard. Prometheus is no longer supported.
Certainly WebCT users are concerned about the "merger" with Blackboard and what will happen to their system.
Let us not be looking under every rock for the bad guys and gals who may or may not be in our midst. As I think somebody pointed out in this thread already, when some of us start looking over our shoulder, it is a good way to crash into the obvious.
Do we think open source Moodle is driving the cutting edge trends? Which suggests that the mega corp will need to catch up to rear end us. There is always the copyright counter attack. Where somebody claims that Blackboard has been knocking off the look and feel of the leader's product for years.
Yeah it is all about the money. It is a good thing Uncle Bill does not have a product or combination of products that could be construed to violate the Blackboard patent(s).
What really matters is if a judge will decide to hear a case. It doesn't matter if any LMS decides they don't violate this patent. It only matters if a judge decides to hear the case, and send the claim to (a potentially expensive) trial. Many a corporation have folded in the face of a possible trial, even ones that they knew they could win, just because of the threat of a lawsuit by a powerful corporation.
My experience has been that the bad guys will come up and bite you in the bum if you aren't looking under every rock for them.
If you do a News search, you will see that this patent was recently announced by Blackboard. When is the last time you ever heard of a company announcing they received a patent for a product that has been around for years? Yeah, those companies that were ready to kick butt on their competitors. I think we would be wise to take notice.
My institution doesn’t use a Blackboard system but uses a competitor’s course management system. How are we affected?
Evaluating patents can be complex and because we don’t know the specifics of how your system works, we would encourage you to consult with your CMS provider for answers.
That does sound rather alarming. Reminds me of the whole Acacia thing over streaming content. . .
It may be more valuble to them as a big stick to wave around rather than actually using it and running into trouble as its not a patent they can defend.
Well, I was shocked to see that it is now going towards the patent stuff On the other hand... probably it's one more of those "cases" that are needed to finally crash the whole patent industry worldwide and send all those patenting bastards to hell!
Why are still so many of us cowardly passive against a system that allows people to externalize costs, privatize earnings, monopolize knowledge (even if it is produced by others or doesn't "belong" to anyone), squeeze every buck out of others, etc. How dumb are we?
Are some of us, even speculating to become suddenly also winners on their sides? Are some just quiet in order to not put at risk their job, not to get in troubles? Most of us are living in democracies, so WE define how the world looks like in which we are living...
Btw, one of their strongest weapons is, that people tend to rather like to solve an "isolated problem" (let's say: Moodle isn't threatened by Blackboard patents) than to consider the entire problem.
Off again for another year or so
"the name is programme"
Everybody using it? The developers of the individual bits they object to? Martin?
Should be fun!
Rigth now I'm writing my phd thesis (whish me luck!!!) about E-learning and sutainable development, and this case has just openend one chapter I din'nt think about. If E-learning can be a key tool to empower human development and sutanibale debelopment (that sure is!) software patents can be a way to stop it fro being so. Like all alternative energy technologies to oli have been delayed at least 20 years cause somebody bought in time the patents just to slow them down...
Software patents are evil. But Moodle is here to stay!
If we do need to, though, you can bet your Assignments that there WILL be an LMS/CMS/VLE Defense Fund set up to fight it (for not just Moodle, but the 100 or more other systems and thousands of developers this action would be affecting).
I am totally not worried about this, everything is fine. So please don't panic everyone!
I'm with Martin. Going after Moodle, or for that matter any oter LMS system would hurt their own reputation more than help them.
The fact is it sounds pretty much like they have tried to patent a concept(LMS) rather than a specific technology or process. I can't believe they were able to do this. I understand a need to protect intellectual copywrite. The ability to protect ones own invention is paramount to truning it into a succesful venture. But if I was to invent a new rasberry flavoured fizzy drink and patent softdrinks as a whole..I would be laughed out of the room. But sadly this is what looks like has happended here. Blackboard are more than entitled to protect their intellectual property...and god help anyone who copies their system, but geee..if they tried to attck the other wide range of LMS's with different methodologies, technologies and design..I cant really see them holding this up.
So,let's just see what happens, And in the meantime Im off to patent 'stupid ideas'. Ill make a fortune off that one
Julian, I think you are overly optimistic about that one. If there is a huge amount of prior art for something, it is for 'stupid ideas' .
I don't actually think anything will happen, because all enforcement will do is make Blackboard look like the bad guys.
Irony at its best
I already sent an email to them asking them to put BB on their "Wanted" list.
This should give them the exposure they want/need.
I asked my Dad (patent attorney - makes for some interesting family dinner conversations ) what searching he thinks the patent granters would have done to enable the patent, he says they do try to look outside their own index of patents for information on prior art but that they tend to rely on their index quite a lot. So collecting this information (I'd never heard of Mallard) could be very useful.
I dropped in WOLF/Learnwise which we've used for years just to add to the timeline.
As an aside my secondary school had a few commordore PETs and I remember taking a test which was marked by the tutor centrally back in 1984 ish. I think we had to save our results on 5.25" floppys or cassette or something and hand them in. Not quite networked VLE, but going in the general direction.
As an example I have documented the relevant references for the Omnium Project in 1999 on that page:
It will make that page a far more relevant legal resource for the Desire2Learn defense.
I believe that Desire2Learn could also use the defense that the patent is "obvious" to a "person having ordinary skill in the art".
I.E. there is nothing ingenious about the patent and therefore it is not an "invention".
On it's own (without further analysis) the prior art stockpile would probably give this argument some backup.
One of Blackboard's claims is on multiple roles.
This article says:
One such function developed by the company is the ability of a single user to access multiple courses under different roles. For example, graduate students are able to access classes for which they are teaching assistants and classes they are taking as students
Graduate students have been teachers in some classes and students in others for centuries. The need for this would be immediately obvious to ANYONE implementing an on-line course management system, and in fact that capability is present in EVERY such system I'm familar with. I'm pretty sure that even the 1960s era PLATO system had that capability, and I'm positive that Mallard did.
I don't think the "non-obvious" has been met here.
Yeah... I think also and fully agree with you dude.
(Edited by Mary Cooch to remove link- original submission Saturday, 8 January 2011, 07:11 AM)
There is a lot of information about this sort of thing here.
I've attached it here (apologies in advance for a long post)
For those of you attending the Desire2Learn Users Conference today in Guelph this will be redundant information. For those of you not attending, we are sorry you are not here but we wanted to share some information with you in the spirit of our company's historical and ongoing collaborative approach with our clients.
On Wednesday, July 26, Blackboard Inc. issued a press release about a patent that was issued to them by the U.S. Patent & Trademark Office. That day, Blackboard Inc., a Washington, D.C. corporation, filed suit against Desire2Learn Inc. in the U.S. District Court for the Eastern District of Texas, alleging that Desire2Learn is infringing on the patent Blackboard announced that day.
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. Please understand that due to the nature of litigation some information can not be provided at this time. We pledge that as we are able to provide additional clarity on this matter, we will share information with all of our clients.
Given the current U.S. litigation climate, patent actions are not unusual. While the matter is serious and will require our attention, it will not affect our day-to-day business, product roadmap, attention to client success, or future directions. We have established a team to address strategy and develop an action plan.
We remain confident in our market leadership through continuing innovation and differentiation; superior client support and service; track record of growth; marquee client list (as is evident here at our conference), and extraordinary employees.
Thank you again for your continued commitment and support. As the litigation progresses we may ask you for to provide certain information and we hope you will consider cooperating if we do so.
Should you have any questions please direct them to Jeremy Auger (COO), John McLeod (Director of Marketing), Diane Lank (Internal/US Counsel), or myself.
Our plans here at the Users Conference have not changed; we know this will be our best Users Conference to date given the incredible number of attendees, superb speakers, schedule of informative and fun events, and wonderful host/venue.
and the Wikipedia page Antony Whyte points out is also relevant http://en.wikipedia.org/wiki/History_of_virtual_learning_environments
Reading their patent, it is rather vague and general. It should be easy to find prior art on the technologies they describe.
- CCC-project from Suppes and Atkinson Stanford University? (by 1978 150.000 students from 24 states were enrolled in daily distance courses)
- TICCIT project from Bunderson (1975) Bringham Young University, Provo Utah
- PLATO, PLANET, COURSEWRITER, PILOT, TAIGA, TUTOR (Control Data), ASET(Univac), DECAL/CAS (Digital), TENCORE, PHOENIX / IIPS IIAS (IBM), MCSD (Delft), QEUST/MUMPS, CAIASCO, MODCOMP (Authoring) Course Structuring Facility (CSF) IBM, NGL (Sybase)...
The oldest documented (ISBN 90 6472 042 8) educational project in The Netherlands: Leren met computers in het onderwijs
names: A. Dirkzwager, J. Beishuizen, G. van der Veer, R. van de Perel, F. Brazier,
In december 1968 Project 0113B funded by the Foundation for Educational Research (SVO) was started by two Dutch universities. Starting from 1968 schools were connected with terminals to mainframes:
- University Leiden: focus on automation of didactical decisions during individual learning (1968-1979)
- Free University Amsterdam: programming of responsive environments for indepedent learning (1968-1982)
An overview book from 1996, that is two years before 1968..
Telelearning in a digital world: the future of distance learning, Bety Collis
ISBN 1 85032 157 4 (http://www.student.cardonald.ac.uk/sln/fv/nav/web/pack/ss1/21century.html)
I remember working with UMUC on an elearning product called Webtycho
The link provides the history of Webtycho
As a University professor I got involved in elearning testing almost all the elearning systems from 1980.
I remember at the earliest point of time WebCT and Bb approached us for beta testing their versions before going to the market.
During 1999-2000 I engaged coders, commissioned and deployed an elarning framework for my University.
I will search my files to get the earlier correspondence we had with Bb
I am to proclaim that elearning is organic (mental process) and Moodle is costructional and not a mechanical process.
I dont know whether Patent will cover the mental process.
I still remember an article where how the patent office refused to patent a graduate student's graduate project work training of pigeopns to do quality checking in a pharma industry and the Patent refusal was based on the fact that it is a mental process and not a mechanical process.
It sounds like you will be a hugely valuable resource in the fight against Blackboard. I invite you to participate in the history timeline at http://en.wikipedia.org/wiki/History_of_virtual_learning_environments.
With regard to patenting a mental process, I used to tell my students that you can't patent an idea but now it seems you can. One of the first was Amazon's "one-click" patent. Although it is under review because a teacher from New Zealand challenged it on the basis of an earlier patent that was issued for essentially the same thing. See http://arstechnica.com/news.ars/post/20060519-6872.html. This gives us hope.
Thanks for your invitation to join. I will be happy to join with you to stop Bb from its threatening move to weaken the open source movement.
Even I am thinking of lobbying/advocating/seeking legal remedy for preventing Bb into India.
http://www.downes.ca/cgi-bin/page.cgi?post=35209 (see comments)
Hopefully, there is more!
it's attached to this article.
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.
I'm a bit of a newbie, can someone please explain how patents affect customers?
MS has been attacked with patent claims on all sides, and not one of their customers has been sued for those patents.
It might have saved everyone a good deal of money to have settled with Eolas rather than having to recode.
On the other hand, perhaps Eolas v. MS is a good example of what might happen with BB vs. D2L, it becomes clear whether BB can patent the entire industry of online learning, or just a specific architectural/engineering method for delivering large scale elearning applications.
INAL, but I suspect it will be the latter, and perhaps folks who are using J2EE/.NET style application erver/servlet applications will have to pay, while folks using Apache module 'shared nothing' script based applications will be ok. Of course MS might want to chime in on whether .NET applications can be used in education, as might Sun.
In my guess this case will come down to whether D2L uses a similar application architecture to BB's to achieve scalability. If on the other hand the entire field of online learning is given to BB, that has very broad implications: for instance if a teacher sets up a Yahoo group and adds his/her students as members, who gets sued, the school? The teacher? Does Yahoo have to make sure that no teachers are using their groups for classes? Does MySpace? Google? If you set up and Apple server and give your teachers write privileges to their directories, is that a conflict?
Hopefully D2L will bring in some folks who can explain these complex issues to the jury, and get the patent's limits defined more carefully.
And success! I was right.
Didn't know it was so well-used to warrant an ETLA though. We live and learn.
One of the comments in the current Moodle story is that to avoid this patent Moodle could "moove offshore", duh, like what shore? ROTFL, LOL, etc etc etc
Martin - you raise an interesting point .... that Patents only affect Developers. One other issue that people have not addressed is the fact of IP. If any of the people cited in the original Patent Document have moved on and still engaged in the industry, it raises issues on IP ownership. <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
A couple of simple and effective approaches. Concentrate of the Institutions that are using Blackboard and demonstrate the stifling affect this Patent will have on their learning environments (having to follow one pathway and solution) and their longer term abilities to promote innovative learning within their institutions. Influence the bean counters of the institutions that a good slice of their licence fees are to fund legal action against flexible learning innovation - the very core of education.
I appreciate it is a simplistic view in the initial stages, but many in the hierarchy need view it in broad simplistic terms understand the implied impact. Then we can get into the complexities.
One question for MD ….. has Bd copied any of your development IP in the enhancements of their program that has crept its way into the patent …. Or for that matter any one else’s?
Food for thought
Any statements in this press release about future expectations, plans and prospects for Blackboard and other statements containing the words "believes," "anticipates," "plans," "expects," "will," and similar expressions, constitute forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important factors, including the factors discussed in the "Risk Factors" section of our most recent 10-K filed with the SEC. In addition, the forward-looking statements included in this press release represent the Company's views as of May 10, 2005. The Company anticipates that subsequent events and developments will cause the Company's views to change. However, while the Company may elect to update these forward-looking statements at some point in the future, the Company specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing the Company's views as of any date subsequent to May 10, 2005.
I thought that was the standard disclaimer gobble-dee-gook in the "about Blackboard Section" meant to be attatched to anything that could resemble a financial projection. (I'm in the middle of reading about the Enron meltdown).
It would be interesting to know if it really is intended to undermine the content of anything media releases.
What i disagree with quite strongly is Blackboard's claim to be a 'thought leader' in online learning technologies in their patent press release where in the reviews of VLE / LMS systems that Oleg Liber and I authored in 1999 and 2004 for JISC their approach in comparison to other systems around seemed to be anything but innovative - from a pedagogical standpoint at least. googling 'a framework for the pedagogical evaluation of vles' will find it for anyone who is interested
From our original report I seem to remember that a number of the web-based systems we looked at pre-dated blackboard. TopClass was one, I'm pretty sure that Virtual-U also did, along with FirstClass and others. Our own work on the 'Toolkit for the Management of Learning', later to become Colloquia dated from 1997. I'll add it to the online history..
Which according to Google Scholar is cited by 105 other papers.
"Honest and Ethical Conduct and Fair Dealing
Employees, officers and directors should endeavor to deal honestly, ethically and fairly with the Company’s suppliers, customers, competitors and employees. Statements regarding the Company’s products and services must not be untrue, misleading, deceptive or fraudulent. You must not take unfair advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair-dealing practice."
* Endeavour to deal honestly, ethically and fairly
* Statements regarding the Company's products should not be untrue
* You must not take unfair advantage of anyone through manipulation, concealment, or misrepresentation of material facts
* Or any other unfair-dealing practice
I would have thought these simple guidelines would not be so difficult for Blackboard's directors to comply with.
Also reading up a bit on US patent law, and checking with people who work in IP law, but it seems to me that under US law you can only ask for royalties from the date the patent was granted. It is not retroactive to the date of filing, unless you meet a relatively high standard. As my lexis-nexis acct expired a while ago (sigh), I have to refer to Wikipedia which says
"In U.S. law, no infringement action may be started until the patent is issued. However, pre-grant protection is available in the U.S. In the U.S., 35 USC 154(d) allows for a patent applicant to obtain a reasonable royalty for infringing activities before a patent is granted. This right to obtain provisional damages requires a patent holder to show that the infringing activities occurred after the publication of the patent application 18 months from filing, that the published application is substantially identical to the eventually granted patent, and that the infringer has "notice" of the published patent application."
So I don't think they can ask for royalties them back to 1999. The bad news is that they can still claim control over the patent going forward. We need to get the prior art well documented...
...perhaps this agressive move by Blackboard could in the end hasten the development as well as increase the importance of the next generation of learning management systems. One could even speculate if this will cause the many open source systems, such as Moodle to evolve even faster. Perhaps this will direct more attention to the much discussed personal learning environment and social systems like ELGG?
In reading over the text of the patent, and noting its big emphasis on predetermined and predefined teacher-student roles and the interaction between those two, it seems to me that the new roles system in Moodle will make Moodle quite a different system fundamentally from what Blackboard has patented. Even the fact that Moodle already has editing teachers and non-editing teachers, and the fact that a student in one course can be a teacher in another makes it different from the basic patent description already.
Also, in their first claim they say each user is associated with a particular computer. I think that is going to be impossible to defend as what about a bunch of students accessing Moodle from a computer lab with shared computers? Or what about a student who accesses it from more than one computer? Even Blackboard doesn't work the way they describe it.
Now, if one of the forum members was a lawyer who could put these citations into an amicus curiae brief (or dozens of them, for that matter), then maybe we could make Blackboard pay for their arrogance. Surely no claim in the patent is so bulletproof as to withstand the shelling this community alone could deliver?
I mention it because I've seen too many cases where people start off a barrage of sniveling "Ain't it awful!" and then never take any action to correct the injustice being observed.
Furthermore, I strongly suggest an action campaign to influence Blackboard's current University customers to change to a competing product, citing all the deficiencies of the product and exposing their weakness as a third-rate product in need of legal trickery to maintain competetiveness. I bet that would get their attention! Today's "users" are tomorrows "administrators" and it would be counter-productive to cause long term resentments in the people who may be responsible for buying their product someday.
Rather than focus on Blackboard's "weaknesses" (there's got to be a reason the universities are using Blackboard to begin with so we can't assume that these things are weakensses), one should focus on the strengths that set Moodle apart and especially those that make it different from the patent description of Blackboard. The new roles system being one that is immediately apparent, and I am sure there are more that can be found.
And reminding people that Blackboard is suing their competitors may just cause the people buying the products to take a wait and see approach until the lawsuit pans out.
Good point...I had this exact discussion today with a university leader...university leaders are taking notice of this and it would be foolish of anyone in this business to just blow it off and not worry about it.
It will be interesting to see how this turns out, but I think there is the potential for this to be more serious than many believe. Patents and Trademarks are good things...until you become the victim of one
On a side note...I started teaching online classes in the mid 90s with a very large online university...the University of Phoenix Online Campus. We used "Convene" a very basic LMS (I think the university started using it in about 1990) and later (around 1998) switched to Outlook Express Newsgroups. There is plenty of "prior art".....online learning was happening long before Blackboard...whether that will matter or not remains to be seen.
Trademarks are names. Everyone would agree that Blackboard can use that name for their products and have protection.
Patents are supposed to be for specific creations/inventions, which is fine. The trouble is that software patents are actually locking down generic IDEAS and PROCESSES. And in this case the ideas are not even slightly original.
What CIO in his/her right mind is going to bet on the future of any of Bb's competitors? Or, to put it another way, if your CIO walked up to you tomorrow and said, "Guess what gang? We're dropping Bb and going with D2L." How would you react? Sure, D2L *might* make it. They might. But they might not. But is that a risk that your institution is willing to take? And compared to Bb, who has the greater likelihood of survival?
While no CIO in his/her right mind will jump ship from Bb to D2L, it's very feasible to see CIO's jumping ship from D2L to Bb. After all, if you are betting on D2L making it and it looks like they might not, you'd be irresponsible as a CIO not to do something proactive.
I agree with someone else (can't remember who) who said that Moodle and Sakai are probably safe from Bb. Bb needs them to justify its claim that it is not a monopoly.
The Blackboard patent is under discsussion at Slashdot, see
I wonder how long before it descends into a discussion on the virtues of Gun ownership
and this from blackboard's FAQ
What other countries are covered by the patent?
Patents corresponding to the U.S. patent have been issued or are pending all over the world including in the European Union, China, Japan, Canada, Australia, Singapore, New Zealand India, Israel, Mexico, South Korea, Hong Kong and Brazil.
We're having a community forum session on edtechtalk this weekend. All moodlers are, of course, welcome.
Patents corresponding to the U.S. patent have been issued or are pending all over the world including in the European Union
Well, they are pending and they will be for a while in the European Union, as software patents are not legal in the EU.
And since they both are operating on the same business model and aiming at the same sort of customers, it isn't a stretch to think that D2L did try and make themselves into an alternative version of Blackboard in order to get its customers. If you look at this comparison of the two they sound awfully similar:
from Higher Education Chronical
available for free for 5 days from publication then by subscription only
However, he [Blackboard VP Small] also said that had Blackboard not merged with WebCT, then WebCT would have been infringing the patent.That suggests to me that Moodle, Sakai, UCompass, Angel and all the other course management systems are at risk. No, Blackboard isn't likely to sue schools and universities (after all they are all potential customers) but you can bet they'll play the, "You know, if you go to market with XXXX product you will be violating our patent" threat to the hilt against anyone who produces course management software (anyone who might take a customer away from them) including Moodle Pty Ltd and the Sakai Foundation.
Clearly they went after Desire2Learn because it is Bb's next biggest commercial competitor after WebCT which it bought last year. It would be harder to sue the open source systems like Moodle (Who would you sue - Martin?).
This discussion has focused on learning management systems in the education area. There are also at least 100 LMS competitors in the corporate sector - Saba, SumTotal Systems, Plateau, Training Partner, GeoLearning, Learn.com, etc., etc. The first four of these also existed prior to 1997 (when Blackboard started). SumTotal Systems was previously known as Click2Learn and, before that Asymetrix - makers of ToolBook and founded by Paul Allen in 1984.
The way I read the patent, Blackboard could also go up against all of these people. This is indeed scary and we should support Desire2Learn (a smaller but good Canadian company). At http://www.theinquirer.net/default.aspx?article=31833 you can read the story of a New Zealand actor who convinced the patent office to re-examine Amazon's "one-click" patent (which, I believe, was among the first patents for an idea). He claims that a previous patent was issued for essentially the same thing. If anyone received a patent or submitted a patent application prior to 1999 we would have a case. Is that likely?
- Internet-based education support system and method with multi-language capability (22May03)
- Internet-based education support system, method and medium providing security attributes in modular, extensible components (19Aug03)
- Internet-based education support system, method and medium with modular text-editing component for use in a web-based application (19Aug03)
- Content system and associated methods (13Aug04)
- Internet-based education support system and methods (28Jul05)
The patents cover other e-learning technologies and specifications other than the 44 claimed in Blackboard’s first patent to be granted in the United States. It appears that they could potentially be claiming to have invented Learning Objects, multi-language LMS, embedded HTML text editors, as well as the original claims of many core functions of LMS systems."We need to set up a website for registering support against Blackboard and collaborating internationally to take down these claims. As a safeguard, we should also patent the idea of a web application being used as a means of organising and facilitating international social action and collaboration. ;)
To place prior art on file with IP Australia, check out this blog post: http://blackfate.edublogs.org/2006/08/02/informing-ip-australia-of-prior-art/
That is a good idea Leonard - rarther than wait for Blackboard to taken patent legislation against others, it would be a good idea to send prior art to patent offices. If a patent might be overturned or not granted, then it would be a considerable confidence booster.
Do you know the procedure for filing prior art in Japan, Jamie James Philips?
Where is the mother of all prior art wikis? I think that it would be a good idea if it were very prominently advertised on the Moodle site - As The History of Online Education - and I guess public (wikipedia).
I don't think that Blackboard will be able to patent the concept of online education, but it is in the nitty gritty that Blackboard will genuinely have made innovations and patented them. E.g. Someone mentioned the use of drop down menus to change languages (I guess that his is the same as the multi-language capability above). Each of these patents and the prior art relating to them needs to be considered in turn.
There have been posts by moodlers asking for Blackboard features and some of them . I guess that reallly truly there are some features in Moodle that are inspired by Blackboard.
But also there is a lot more innovation going on here at Moodle than there can be a Blackboard, due to the size and energy of the community. There must be loads of innovations that really truly took place here, that in the future Blackboard and its competitors will not be able to do without. E.g. autoenroll into groups using student passwords and many many more. Do these count for anything. When Blackboard comes and points out one of the minor innovations of blackboard that may be being used at Moodle, will it be possible to point to the many innovations that occured at Moodle that Blackboard will want to use, and ask them to get the plank out of their own eye?
That exact site is being set up, should be announced soon.
Squaring up the Bb with that sort of site and admitting they have a case, or do you turn and walk away because they don't?
Bb has certainly stirred up some panic in the community - I bet as Bb read this they are having a good giggle, like a child poking a stick in an ants nest.
Well, I always recommend hoping for the best but preparing for the worst. Seems like that might be a good policy in this case, too.
If it proves necessary to do so, I will contribute whatever money I can afford to this noble cause. And I will certainly contact the appropriate politicians to help educate them about this issue. That's about all I can do, I guess. (Of course, I am open to suggestions.)
I don't think that creating a site to rebuff Blackboard's claims is at all admitting they have a case. However, Blackboard have seen fit to throw the book at Desire2Learn, and the only way to defend that company, and any others Blackboard decide to sue, is to act in a methodical, organised fashion to construct a legal case and an international support network.
Walking away will only leave each respondent isolated against Blackboard's corporate largesse, with Blackboard accumulating damages from each successive victim to sue the next.
Organising a collaborative website and planning to strategically and methodically have Blackboard's claims dismissed, and their ethics shunned, is the farthest thing possible from panic. Panic is to run and hide in the sand; an organised defence will make Blackboard think carefully about wielding their patents or claiming further inventions they did not truly make.
It's interesting that Blackboard insiders have dumped over 4 million shares of the company in the past twelve months, while purchasing a mere 2,500 shares. These don't exactly seem like the actions of a management team that has a high degree of confidence in the long-term profitability of their company.
Bb also had a negative cash flow of $2 million last year, and their net income went from $23 million in Q4 2005 to only $148,000 in Q1 2006 (no, there aren't any missing zeros in that number). They're also predicting a $6.1 to 7.8 million loss for the second quarter, and a $12.7 to $13.7 million loss for 2006 as a whole. They're attributing much of that to "non-recurring integration costs" (presumably arising from the WebCT buyout?), but still....
It's pretty amusing that they're carrying $10 million in "goodwill" on their balance sheet as a long-term asset. I'd bet that "asset" has not only vanished, but actually gone negative this week.
We may be seeing an attempt to stop their stock from cratering after they announce their Q2 (non)income next week (August 8). If so, I think they've made a serious blunder. Almost all the publicity I've seen is negative; causing your customers to hate your guts is rarely a sound business strategy.
These are always very tough situations but I would take a defensive and offensive strategy.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
Defensive: If Moodle happens to violate Blackboards patent then position it where is doesn’t. For instance, if Moodle (core) was simply a collaboration platform that third-party people made add-on modules and blocks that together created a LMS-like product. Then neither Moodle or any individual add-ons violate the patent. This idea might be a long-shot but it seems right to me. People who wanted an CMS/LMS/VLE would have to build it themselves or someone would create a script that would gather these remote modules and combine them. I think this would work if Moodle (by different add-ons) could become something else like just a blog site, or a wiki site or just a SCORM testing tool. Blackboard would have to sue a whole group of people whose unique combination of products happen to create a LMS-like application.
Offensive: What if one of the third-party add-ons converted a Desire2Learn course to a compatible format which could be used by a Moodle-like product. As Blackboard sues others more conversion modules appear.
Apologies for the earlier thinking aloud error .
The wording of Blackboard's patent applications is very interesting - not so much perhaps in what they are claiming technologically but in how they describe and identify learning. Notice, for example, how they talk about Blackboard as a learning "support" system. Do they have some idea of protecting the Blackboard VLE as a blended learning delivery system? If a system "supports" learning, where is the core learning taking place?
If you look closely at the text of their patent application there is continual reference to their VLE and its tools as means of "instruction". (It's impossible to describe tools and facilities without implying a learning theory and its pratices.) This instructional emphasis by Blackboard is something we have been aware of for years - particularly in the UK. In many instances, in order to provide effective learning, we have to work around the obstacles presented by Blackboard structures.
Blackboard is inherently (and seems to have been designed and marketed as such) a content delivery and testing environment with an underlying knowledge delivery metaphor of learning. All of which mirrors somewhat dated conceptions of instruction that are, unfortunately, still fairly widespread - probably more so in the USA than elsewhere. However, the significant advances in elearning have all come about through a recognition and development of online learning communities, where peer-to-peer interaction and content creation are more important than how a teacher delivers knowledge or tests skills. To me, this is the gap in Blackboard's claims for a learning system. They continue to misunderstand the nature of learning in general and hence of elearning in particular.
By the way, the word "Moodle" is not in Aspell dictionary here! That might be taking IP rights to a new level!
"But Mr. Small [senior vice president and general counsel of Blackboard] said fears like those expressed by Mr. Schilling were overblown. It would make no sense for Blackboard to go after open-source programs like Moodle and Sakai, he said, because they are not commercial providers."
If that is true, it confirms my theory that they wouldn't go after Moodle because it simply is a totally different business model. Clearly they decided to go after the threat that resembled them the most, rather than a less well-funded small fish that would be easy to battle.
"It would make no sense for Blackboard to go after open-source programs like Moodle and Sakai, he said, because they are not commercial providers"
This approach makes sense for Blackboard, as to "go after" Moodle or other OS alternatives would be detrimental (I suspect and hope).
However, having secured this patent it would be naive not to expect Blackboard to parade it in marketing material and sales presentations, placing the prospect of future litigation firmly in the minds of decision makers. The entire situation is an ideal opportunity to spread FUD.
As someone has suggested earlier (in the JISC VLE discussion), one always expects commercial entities to protect and further their market presence and profits. However, given what is at stake for education globally the whole affair is quite unsavoury.
No matter what the facts of the matter may be I would hope that the question posed in any (of the many) discussions on this topic in future will be "Do you want to do business with people like this?"
Do you want to do business with a company that puts its earnings back into further improving its product (like Moodle) or a company that puts its earnings into destroying its competition (Like BB)?
And to tell you the truth, I want Moodle (and FOSS) to win on merits. I don't want the patent to kill proprietary LMSs either... if that was possible at all! If the patent "works" against some LMSs, it'll work against Moodle, the license doesn't make a difference.
And at the end of the day, I want to work in a space full of new ideas, not of monopolies on the obvious...
So is anyone working on a Desire2Learn to Moodle Conversion Module???
As long as Bb is not after Moodle. Moodle might be the only one to offer soon-to-be ex-D2L users a safe harbor.
Let's help D2L.
> As long as Bb is not after Moodle.
That's wishful thinking. Bullies try first with the weak ones. Join the bully? Nah. Show your fiber and fight the bully!
The education community needs to stand together on issues like this and send a very clear opposing message.
And, I think we need to get this message out into as many media outlets as possible - online and traditional. If anyone has the connections to get articles written in newspapers, magazines, etc - that would help spread the word.
Someone also might consider releasing a press release about this. Not someone who actually works for any LMS (lest they incur the wrath of Blackboard next), but if some connected company or even some group of companies and organizations would band together and release a statement, that could help get the message out more.
"People Against the Unethical Treatment of LMS Developers"
"International Consortitum for Freedom in Online Learning"
Ummmm... I guess none of these have a very catchy anacronym....
From India - By a leading daily from Mumbai - Times of India
Patent may snip India’s e-learning hopes
Mumbai: While it is true that the market for online education in India is
barely Rs 500 crore, it is also true that the space is growing rapidly. But
more importantly, Indian companies are hoping to grab a share of the global
business expected to be valued at $21 billion by 2008. But even before it
takes off, the business may have hit a huge road block.
Washington-based Blackboard, has been granted a patent for technology used
to deliver internet-based education and support. The patent is already
applicable in the US, New Zealand, Australia and Singapore. Its sweep spans
every little bit of online education including processes like how courses
are offered and managed. The patent is now pending in other countries
Signalling what it intends to do with the patent, on the day it was
awarded, Blackboard sued Canadian company Desire2Learn, its main competitor
in the market that caters to American students.
Even as lawyers at the Delhi-based NIIT are studying the fine print of
Blackboard’s patent, industry experts say Indian companies enrolling
USbased students for their e-learning programmes need to watch out. Any
infringement of Blackboard’s patent may invite a law suit running into
hundreds of thousands of dollars.
Says Samudra Sen, CEO of Mumbai-based LearningMate Solutions, which
works with leading e-learning companies globally, “The patent is certainly
going to be an irritant.’’
Founded in 1997, Blackboard filed its patent request in June 2000, when
e-learning systems were already in use for many years. The company’s patent
encompasses many commonly used methods that companies and universities have
used to deliver their courses to students.
Says a private equity investor, who funded online education companies,
“The patent is so generic, it is not funny. It covers everything that a lay
person will know about e-learning. I don’t think it will stand scrutiny.’’
Yet, it is the all encompassing patent that worries the industry. In the
past, despite computer programs being obvious and known for many years
before patent application, courts have upheld the patents.
Cadtrak, a company which owns a patent involving a cursor on the screen,
collects million of dollars from large computer manufacturers for using its
The courts upheld the patent twice though the technique as used at least
five years before the patent application. UK patents covering customary
graphics techniques, including airbrushing, stencilling, and combination of
two images under control of a third one, were recently upheld in court,
despite the testimony of the pioneers of the field that they had developed
these techniques years before.
In the software industry, nothing protects programmers from accidentally
using a technique that is patented, and then being sued for it.
At first blush though, Indian companies don’t seem worried yet. They
feel the patent can cover only specific systems and there are many avenues
to deliver e-learning without infringing on Blackboard’s patents.
For example, popular exams like GRE and GMAT have been administered on a
client-server based platform for many years. These tests follow a unique
system of adaptive questioning, where the system increases or decreases the
difficulty of the next question based on the answer to the previous one.
Since Blackboard’s patent is specific to its methods, the patent won’t
affect these popular tests.
Says Vijay Thadani, CEO of Delhi-based NIIT, “Internet technology is
vast and evolving. There are numerous ways to deliver courses online and
assess students. I don’t think we will worry very much about this patent.’’
But the patent has already created a buzz in the e-learning space. Many
reckon this could be the defining make or break moment for online learning
US-based Blackboard gets a patent for net-based learning management systems
in the US, Australia, New Zealand and Singapore
Patents pending with EU, China, India, Israel and few other countries
The patent covers an extensive list of 44 processes including common ones
like registration, online assessments and grade book
Schools can get into trouble for undertaking simple networking tools, user
authentication process and other commonly used functions like discussion
boards as a result of the patent
Online learning companies in India still not worried by the patent, saying
it is too generic and will not stand the test in court
International Community to Combat unethical elearning business practices
Join the "WITE Board".
How did everyone miss this?
erm, my posting, this thread 2 August 2006, 11:59 PM?
" Any statements in this press release about future expectations, plans and prospects for Blackboard and other statements containing the words "believes," "anticipates," "plans," "expects," "will," and similar expressions, constitute forward-looking statements within the meaning of The Private Securities Litigation Reform Act of 1995. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important factors, including the factors discussed in the "Risk Factors" section of our Annual Report on Form 10-Q filed on May 10, 2006 with the SEC. In addition, the forward-looking statements included in this press release represent the Company's views as of July 26, 2006. The Company anticipates that subsequent events and developments will cause the Company's views to change. However, while the Company may elect to update these forward-looking statements at some point in the future, the Company specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing the Company's views as of any date subsequent to July 26, 2006."
Them saying that they will not go at moodle now does not preclude them from doing it in the future. I've heard back from Bb and they are going to 'try' to send someone our edtechtalk conference this weekend. I really want to ask them for confirmation on this...
Can the tasks of helping desire2learn and moodle, be broken down into small bits?
Other than research into prior art, are there other tasks such as
investigating legal precident?
The site were this will take place will be announced in a moodle news email soonish? Or here?
I posted a couple of early Japanese online education book titles (with concrete examples in 1999 and 2000) to the wiki and have contacted a couple of experts in online education in Japan to ask them if they know of any early online education systems. I also contacted the maker of "quiztest" the testing system I used before I started using Moodle.
However, my guess is that it will not be sufficient that a teacher in 1985 told his students to go home and have a look at an internet quiz. Again I guess that there is going to be some definition of a learning/educatoin "system" or "environment", with certain components, perhaps
grades in one area
more than one type of resource/activity
Once we know what the definition is, then we can go and look for it.
Things to do...
The idea that Blackboard is trying to patent is very similar to phpnuke and all the non-educational cms's. I am not sure what the essential difference is, especially since the patent does not seem to cover is a centralised graditing system. It does, however, mention tests (as well as chats and resources which would have been in any cms) and it does mention limiting access to the courses. So when did the nukes first have user authorisation (limited access to the Web site) and a test module? After that difference seems to be one of nomenclature. Who wants to contact all the old favourite CMS's?
I am not recommending "blog spamming" but perhaps it would be a good idea to make a habit of posting to educational blogs mentioning moodle or another LMS with links to the the wikipedia page and perhaps the discussions at the other major LMS. Or would that be fuddy duddy?
Where are the discussions corresponding to this at dokeos/claroline, atutor, manhattan virtual classroom and Sakai?
Related threads: Dokeos, Atutor,
What a shame that we now seem to have purely commercial companies that seem to have totally missed a significant educational philosophy - that universities and colleges worldwide are traditionally in the business of shared knowledge, academic freedom of choice and expression, collaboration in research and support for the common good of educating our students - or is that a too idealistic and naive concept these days?
What maybe an interesting idea is to try to make such companies, who obviously are not understanding, or appreciating, the nature of the environment they exist within, better appreciate that learning and teaching are the important factors here - whatever system one chooses to adopt. Perhaps we could appeal to them through other avenues.
As someone who regularly speaks at education conferences, particularly those interested in e-learning, I have been increasingly worried to see how many conferences of late are sponsored by the big names in educational software. Of note, is perhaps the most prestigious of these - Online Educa - http://www.online-educa.com - that of course this year has Blackboard as one of its major sponsors. It would be interesting to have one of their steering committee comment on what many seem to view as an upcoming monopoly on e-learning freedom (albeit this seems to have already existed in universities for some time through expensive contractual commitments).
If the backlash that is apparent in this forum becomes mainstream opinion, then I am sure such conference organisors would not want to remain associated with companies that in their actions appear to be promoting online education back to the dark ages and probably stand against the views of most of its speakers. After all, its taken many people a long time to encourage our more conservative colleagues that online education is indeed a viable additional option to more traditional methods of teaching and learning. What a shame it would be to remove the freedom of choice in how we do things pedagogically.
I really can’t imagine this issue getting very far in practice, but it will generate a lot of lawyers fees as they argue it out. (I suspect it will go the same way as British Telecom’s hyperlink one). It's rather a WMD really and nobody wins. If they succeed in upholding the patent, they lose enormous goodwill and probably customers. It's such a futile exercise.
More to the point though I wonder if they have seriously underestimated the backlash that this might cause. Lawyers can be pretty persuasive and it feels like the kind of thing that happens when a couple that otherwise would be amicable get nasty in a divorce.
Universities (especially outside of the US, but there too of course) can be pretty hostile to that kind of corporate greed, especially as many of them are tied into massive contracts with WebCT/Blackboard. Most Sys Admins seem to find it a nightmare and a waste of money, especially as so many of them have come to love open source projects (and often contribute to them).
It seems like the desperate actions of a company failing to see the shifting nature of technology and emerging cultures. It’s a very out-dated way of thinking and on top of that Blackboard isn’t even very good. It is increasingly hard for private companies to compete with open-source projects with regards to very complex software (as Microsoft are finding out the hard way). A large software project is massively more complex than building a jumbo jet. It is very hard for one company, even with large resources, to manage that (as a journalist/blogger wrote somewhere recently - I can't find the reference).
Education is also changing massively too and this is a brilliant (and awful) example of the kind of misinformed reaction to that change. I just wrote about this kind of change and proposed some alternatives if anyone is interested by the way: http://www.polaine.com/playpen/2006/07/26/re-imagining-higher-education/
This is the response from Prof. Curt Bonk (USA)
- check out his blog for his own thorough reaction - and for a whole host of other interesting discussion threads - and even images on Flickr - regarding the Bb issue.
don't worry. Latest news seems to confirm that an earlier patent is going to make BB to bite the dust.
Also, any news about "That exact site is being set up, should be announced soon"?. I've been searching for any worldwide (supra-moodle) place where people was getting organised but I haven't been able to find it.
Future e-learning conferences are surely going to be extra 'spicy' in the current context of this dubious patent.
At this point, our chief defense against the Bb patent is that there was prior art before Bb filed their patent application. If this bill becomes law, this argument is no longer available, since as I read it the "first to file" wins the case. Bb was here the first to file.
According to the article, Microsoft and other software companies are in favor of this new law. As I see it, it would favor software companies at the expense of those of the rest of us who have no way to patent anything, and no ability to discover a patent within the one year window of opportunity to dispute the patent.
By the way, one mistake Bb may have made was to sue under their patent before the existing 9 month limitation on disputing their patent expired. Had they just taken a low profile, I doubt if anyone would have even known they filed a patent. Even Desire2Learn was reportedly surprised upon learning of the patent. My point is that no one routinely learns of someone being awarded a patent until their are sued, so there is no opportunity to contest a bad patent until it is too late.
I think our community should swamp Utah Republican Orrin Hatch and Vermont Democrat Patrick Leah who are proposing this bill with opposition. If not, it seems to me that a bad situation will soon become worse.
In any case, I read somewhere today that BB may already have run afoul of the law in Australia in declaring their patent granted there when it hasn't been granted yet. Apparently this is a violation of Australian law...
Sorry if this has been posted already but Desire2Learn now has an e-mail address for claims of prior art on their patent info page:
For new readers, here is a recap of the issue:
BlackBoard Inc. (the dominant provider of e-learning software in the online-education market, after they acquired two other education-technology companies, Prometheus and WebCT) was granted a very broad US patent in January 2006, covering pretty much all the aspects of a common virtual learning environment. They are trying to get the patent accepted world wide. If they get away with it, it means that BlackBoard will have the monopoly of the eLearning market. (Text of the patent, see the abstract: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=6,988,138.PN.&OS=PN/6,988,138&RS=PN/6,988,138)
Nobody seemed to have noticed the patenting process, even during the 6 month period in which people or organisations can protest against the patent (naturally, BlackBoard kept it under wraps). However, as soon as the waiting period was over, BlackBoard announced that they now had the patent and would enforce it retroactively (I believe until 1997, the year the company was founded). http://www.blackboard.com/patent/patentpress.htm
The very same day BlackBoard filed a patent infringement suit against the Canadian eLearning provider Desire2Learn, which presently is BlackBoard's major competitor in North America. The suit was filed in a rural Texas court (one can assume that BlackBoard figures that it will be easier to get their way with a bunch of nationalist hayseeds on the jury, no offence intended). Text of the suit: http://www.theinquirer.net/images/articles/blackboard.pdf
The outcome of this law suit will have an important impact on eLearning. It is therefore of interest to us all to follow the procedure and to take action against the monopolisation of eLearning by one US commercial giant. http://www.boycottblackboard.org/index.php
The open source community is gathering evidence of prior art, so as to prove that BlackBoard did not invent most of the functionality they have now patented (See and contribute to http://en.wikipedia.org/wiki/History_of_virtual_learning_environments and/or http://docs.moodle.org/en/Online_Learning_History or http://www.desire2learn.com/patentinfo/)
This litigation once again shows that software patents are not conducive to the development of fair and open standards in eLearning and European Moodlers should support the European Parliament in its opposition to such patents. Support, for instance: http://petition.eurolinux.org/index_html?LANG=en
See also: http://noedupatents.org/
More patents on the way. Not sure if this has been posted here, but Michael is pretty much the authority on this issue right now...
I'm trying to paste this in the wiki but its not getting done, pls help someone :
5th Century BC : Nalanda
The origin of Virtual Learning Environment can be traced to the 5th Century BC, when Indian Philosophers thought of ways to teach people without the ned to actually show what they were talking about. They thought that if they invented a platform in which learners can actively learn, communicate, collaborate and be tested, the paltorm would be an instant hit and they would patent it later.
They implemented their idea by setting up the Nalanda Uniersity in India. more details here This university, in the 5th centruy BC, catered to 10000+ and great teachers including Buddha. This university was the first platform promogating a Virtual Learning Environment - a place where the object about which teaching happens does not exist. unfortunately, this platform got destroyed in the year 1193 before the patent system could start, so the application for patent of this system which was written in the 5th Century BC could never be filed. Since then, all the schools, colleges and universities around the world have copied this Virtual Learning Environment.
Some private companies in the world have copied this platform onto the internet and in future would copy it in to newer systems, but the fact will remain that the system was invented and thought of long ago and therefore, no one today can claim of having created it.
I'll be listening, assuming I can get on. Their site is already starting to become sluggish.
Other news: losses in Q2 (as expected) and Peter Repetti, their CFO, has resigned.
Slightly OT but still rather Interesting, searching on the BB site (try common LMS names). I bumped into an interesting presentation from May 2006 by T.Gidy (Executive Vice President of Operations).
Where he talks about walking in the shoulder of Giants.
The Giants he includes are:
Leonardo Da Vinci
Martin Luther King
and on slide 27 some Australian guy who created his very own VLE.