Update: Sakai, Blackboard Comment on Patent Pledge

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Update: Sakai, Blackboard Comment on Patent Pledge

2/2/2007

By David Nagel

Severence continued: "[We] had to find a middle ground between conflicting legal needs, and I think we did about as well as we could. The press release from EDUCAUSE and Sakai reflects that: that this was a step forward but certainly left something to be desired."

In an effort to clarify some of the final language in this pledge, we spoke with Matthew Small, senior vice president and general counsel for Blackboard.

Clarifications on the pledge
Small indicated to us that, in essence, all open-source developers and developers of home-grown systems are covered by the pledge of non-assertion.

"There's a lot of unfounded fear and misunderstanding out there," Small said. "So we listened to the community, and we are making this legally binding commitment in writing so that people can have home-grown systems and open source and can provide commercial services around them and not have to think about the Blackboard patent. We were never going to sue open-source [developers] or home-grown systems [developers] anyway, which we tried to communicate as much as we could up to this stage. And by putting it in writing, not only do people trust it more, but they also have all of the necessary detail they need to get to the level of comfort that they need."

Specifically, he said, "The patent pledge covers open-source and home-grown systems and commercial providers of support, hosting, customization and maintenance around them. It doesn't cover competitive, proprietary software companies."

But the "bundling" exception in the pledge still seems to be a concern to some. So Small explained it further: "In order to ensure that proprietary software companies who infringe don't get around our patent by making a portion of their applications open source, we had to include this concept of bundling so that a proprietary software company that has some open source in it still does not fall within the pledge. But we were very sensitive to the fact that some open-source initiatives bundle proprietary components within their applications. So we specifically named every open-source initiative in the CMS space we could think of and said, 'Whether or not you combine your open source with proprietary components, you're covered by this pledge.' And we've gone even further to specifically point out that the commercial hosting, support, and customization of those applications are also covered and made it worldwide and added our pending patents on CMS to the pledge as well."

But, more to the point, he also defined the circumstances in which bundling would be considered unacceptable, as well as the loopholes for developers, both commercial and open-source: "The way we mean 'bundled' is if a software company is taking its proprietary code and open source and putting those together and delivering them together, either via download or on a disc or what have you, or if their proprietary software doesn't work without the open-source piece, that would be 'bundled.