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Update: Sakai, Blackboard Comment on Patent Pledge
2/2/2007
2/2/2007—Yesterday, we reported that Blackboard had released a legally binding pledge stating that the company would not assert its patent rights against open-source developers in the CMS space or against developers of "home-grown" systems. The non-assertion pledge also covers those who service such systems, including hosting, maintenance, support and customization. And it includes the current patent, as well as patents pending. We spoke with Blackboard representative Matthew Small, who provided some insight and clarification on the pledge. Since then, we've also had a chance to speak with Chuck Severence, executive director of the Sakai Foundation--a central player in the patent discussion--for additional comments.
As was clear from the joint statement issued yesterday by Sakai, an open-source course management system developer, and trade group EDUCAUSE, not all of the concerns of the open-source community were addressed in Blackboard's pledge. The two groups released a statement supporting the patent pledge, but with certain reservations.
We have responses from both Sakai and Blackboard on these latest developments.
Background on the patent
For those of you who are unfamiliar with the Blackboard patent saga to date (AKA "Bläkbørdssagarauða," for the Icelandic saga scholars in the audience), it began essentially in early 2006 when Blackboard obtained a patent for "technology used for Internet-based education support systems and methods" and then filed a patent-infringement suit against rival Desire2Learn in July 2006. Individuals and organizations, including EDUCAUSE, opposed the moves by Blackboard. In October 2006, EDUCAUSE President Brian L. Hawkins wrote a letter to Blackboard CEO Michael Chasen requesting that Blackboard "disclaim the rights established under [Blackboard's] recently-awarded patent, placing the patent in the public domain and withdrawing the claim of infringement against Desire2Learn." That letter was approved unanimously by EDUCAUSE's board of directors Oct. 8 and 9 and became public in late October. (See link at the end of this article.)
Then, in November of 2006, an organization called the Software Freedom Law Center (SFLC) filed a request with the United States Patent and Trademark Office (USPTO) to reexamine the patent on the basis of its assertion that Blackboard's patent was invalid owing to the existence of "prior art," or examples of the technologies Blackboard had patented that existed prior to Blackboard's patent application. That request was filed on behalf of the SFLC's clients Sakai, Moodle and ATutor, all organizations that develop open-source course management systems.
The request was granted by the USPTO last month, and so the reexamination process on the validity of the patent is underway, though results may not be forthcoming for years.
A little bit later, Desire2Learn filed its own, more complex request for a reexamination with the Patent Office, and that request has been assigned to the the same examiner in the USPTO who is handling the SFLC request. Further information on that particular aspect of the reexamination is not available as of this writing, but Blackboard's patent-infringement suit against Desire2Learn continues in court.
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