Blackboard Patent Suit Stirs Up Academic and Open Source Hornet’s Nests–Blackboard v. Desire2Learn

By John Ottaviani

Blackboard, Inc. v. Desire2Learn Inc., No. 9:06-cv-00155-RHC (complaint filed July 26, 2006)

Although this story does not seem to have hit the mainstream press yet, there has been a firestorm in the academic and open source communities since Blackboard filed a patent infringement lawsuit against one of its competitors, Desire2Learn, in the Eastern District of Texas a couple of weeks ago.

For those who are not familiar with Blackboard, the company is a leading provider of learning management systems for colleges and universities. Blackboard’s annual report claims that it has more than 2,200 clients in about 60 countries at the end of 2005. Blackboard’s Internet-based systems typically permit instructors to post content and announcements for courses and communicate with students, and allow students to collaborate and communicate with each other and instructors.

On July 26, Blackboard announced that the United States Patent and Trademark Office had issued U.S. Patent No. 6,988,138 for an “Internet-Based Education Support System and Methods.” On the same day, Blackboard filed its complaint against Desire2Learn. The complaint simply alleges that Blackboard’s patent is valid and that Desire2Learn’s products and services infringe the patent. Blackboard has also tossed in a claim that Desire2Learn contributes to and/or induces infringement of Blackboard’s patent.

The academic community is outraged at the lawsuit. Most of the venom has been directed at the perceived breadth of the patent, which many feel is so broad as to cover any course-based on-line learning management system, including those in existence since the early 1980’s. A number of efforts have already sprung up to identify so-called “prior art” (other learning management systems that were in existence prior to 1999 when Blackboard first filed its patent application), to prove that Blackboard did not invent what it has claimed (see examples here and here).

Blackboard claims simply that it is trying to protect its own innovations, not e-learning or course management systems in general. In a letter to Blackboard’s clients, Michael Chasen, BlackBoard’s President and CEO, states that “The Blackboard CMS patent covers only specific features and functionality contained in the Blackboard system that were developed by the Blackboard team. We certainly did not invent e-learning or course management systems, and I am personally embarrassed that this is what some people thought Blackboard was claiming.”

Desire2 Learn has been circumspect in its response. In an e-mail circulated at its User’s Conference in early August, John Baker, Desire2Learn’s President and CEO stated “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.”

Certainly, Blackboard must have anticipated the anxiety and resentment that its lawsuit has generated in the academic learning community. What Blackboard may not have anticipated, however, is the very negative reaction that the lawsuit has produced in the open source community. The lawsuit is perceived as threatening open source learning management projects such as Moodle and Sakai. Even if Blackboard does not sue these projects, Blackboard can use the threat of infringement to persuade colleges and universities not to consider these systems as competitive options to Blackboard’s systems.

My take

Blackboard’s patent is written broadly, but contains 44 claims. We will need to wait for the court to decide how many of those claims are valid, but some of them may very well turn out to be valid. I expect that the valid claims will relate primarily to innovations Blackboard may have brought to existing learning management systems. Blackboard has every right under the patent system to protect its innovations against infringement by its competitors. But Blackboard does not have a right to stifle innovation and competition by trying to enforce invalid patent claims. Whether we ever find out which claims are valid and which are not may depend whether Desire2Learn has sufficient financial resources to defend the litigation. To this end, there appear to be a number of entities that have a stake in helping Desire2Learn defend the lawsuit, and that are willing to provide assistance. Perhaps this will turn into a collaborative defense project in the open source tradition.

More resources:

Blackboard’s Patent Page

Desire2Learn’s Patent Page

Discussion on Stephen Downes’ blog

Moodle discussion board

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