Blackboard Tries Divide and Conquer Approach

Color me unimpressed with Blackboard’s latest move in its ongoing war to kill innovation in the courseware market by patenting obvious CMS features in the education market.

Blackboard is now promising that it won’t go after non-profits and universities who develop their own internal or open sourced courseware. But it is still pursuing actions against its competitors, which will detrimentally affect the courseware market by stifling innovation there.

Fortunately, several groups opposed to the awarding of the overly-broad patents to Blackboard have teamed up with the Software Freedom Law Center to challenge the patents. In November 2006, the UPSTO agreed to re-examine all 44 of the claims of the Blackboard patents in question.

Richard Fontana of the Software Freedom Law Center isn’t buying Blackboard’s latest gambit, noting that Blackboard has confused the issue by suggesting it might still sue open source projects that are bundled with proprietary code.

CNET News.Com’s Stephen Shankland quotes Fontana as saying,

Blackboard could have acted responsibly by making a clear and unqualified commitment not to assert its patents against open-source software. Instead, Blackboard has produced a convoluted document in which, for example, it reserves the right to assert the patent against open source software that is “bundled” with other software, an ill-defined concept that could potentially cover most circumstances in which open e-learning software is used.

Hopefully the USPTO will do the right thing and render this debate moot by invalidating the patents it awarded to Blackboard.


Education software firm OKs open-source patent use. Stephen Shankland, February 1, 2007.

The Blackboard Patent

Probably one of the more absurd recent software patents has to be Blackboard Inc.’s successful application for a patent on “learning management systems,” and its attempts to strongarm competitors by charging them with patent infringement.

Blackboard Inc. owns two “learning management systems” — Blackboard and WebCT. Those are easily the two most popular commercial course management systems, though anyone who has had to use either as a student has to ask why. For the most part, they are stripped down versions of genuine content management systems that force users to jump through hoops right and left to accomplish anything. Their sole advantage seems to be that they scale well on the backend, but open source alternatives are starting to catch up there.

So it makes sense for Blackboard to go the patent route — better to sue your competitors rather than have to compete with them — but its patent again raises the issue of just what the folks at the USPTO are smoking. Just take a quick look at the abstract for the Blackboard patent,

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, the courses including assignments, announcements, course materials, chat and whiteboard facilities, and the like, all of which are available to the students over a network such as the Internet. Various levels of functionality are provided through a three-tiered licensing program that suits the needs of the institution offering the program. In addition, an open platform system is provided such that anyone with access to the Internet can create, manage, and offer a course to anyone else with access to the Internet without the need for an affiliation with an institution, thus enabling the virtual classroom to extend worldwide.

That’s right folks, Blackboard has essentially been granted a patent on applying a CMS to an educational environment. A close reading of the various patent claims reveals there’s not a goddamn single point of originality or innovation here at all.

Blackboard flaks have publicly said that one of the strongest claims they will pursue is on claim 36 of the patent, which essentially describes a system that provides different levels of access to a website based upon a user’s role — a fundamental feature of most content management systems and of computer systems in general.

As Eben Moglen, attorney for the open source Sakai Foundation, put it in a press release,

The recent announcement by Blackboard that it is attempting to assert patent rights over simple and longstanding online technologies as applied to the area of course management systems and e-learning technologies, and its subsequent litigation against a smaller commercial competitor constitutes a threat to the effective and open development of software for higher education and the values underlying such open activities.

Blackboard is currently pursing legal action against Desire2Learn and presumably will aim its guns at other competitors sooner or later.

Federal Research Public Access Act of 2006 (Introduced in Senate)

Federal Research Public Access Act of 2006 (Introduced in Senate)

S 2695 IS


2d Session

S. 2695

<ttitle>To provide for Federal agencies to develop public access policies relating to research conducted by employees of that agency or from funds administered by that agency.</ttitle>


May 2, 2006

Mr. CORNYN (for himself and Mr. LIEBERMAN) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs


<btitle>To provide for Federal agencies to develop public access policies relating to research conducted by employees of that agency or from funds administered by that agency.</btitle>

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


    This Act may be cited as the `Federal Research Public Access Act of 2006′.


    Congress finds that–
      (1) the Federal Government funds basic and applied research with the expectation that new ideas and discoveries that result from the research, if shared and effectively disseminated, will advance science and improve the lives and welfare of people of the United States and around the world; and
      (2) the Internet makes it possible for this information to be promptly available to every scientist, physician, educator, and citizen at home, in school, or in a library.


    In this Act the term `Federal agency’ means an Executive agency defined under section 105 of title 5, United States Code.


    (a) In General- Not later than 1 year after the date of enactment of this Act, each Federal agency with extramural research expenditures of over $100,000,000 shall develop a Federal research public access policy that is consistent with and advances purposes of the Federal agency.

    (b) Content- Each Federal research public access policy shall provide for–
      (1) submission to the Federal agency of an electronic version of the author’s final manuscript of original research papers that have been accepted for publication in peer-reviewed journals and result from research supported, in whole or in part, from funding by the Federal Government;
      (2) the incorporation of all changes resulting from the peer review publication process in the manuscript described under paragraph (1);
      (3) the replacement of the final manuscript with the final published version if–
        (A) the publisher consents to the replacement; and
        (B) the goals of the Federal agency for functionality and interoperability are retained;
      (4) free online public access to such final peer-reviewed manuscripts or published versions as soon as practicable, but not later than 6 months after publication in peer-reviewed journals;
      (5) production of an online bibliography of all research papers that are publicly accessible under the policy, with each entry linking to the corresponding free online full text; and
      (6) long-term preservation of, and free public access to, published research findings–
        (A) in a stable digital repository maintained by the Federal agency; or
        (B) if consistent with the purposes of the Federal agency, in any repository meeting conditions determined favorable by the Federal agency, including free public access, interoperability, and long-term preservation.

    (c) Application of Policy- Each Federal research public access policy shall–
      (1) apply to–
        (A) researchers employed by the Federal agency whose works remain in the public domain; and
        (B) researchers funded by the Federal agency;
      (2) provide that works described under paragraph (1)(A) shall be–
        (A) marked as being public domain material when published; and
        (B) made immediately available under subsection (b)(4); and
      (3) make effective use of any law or guidance relating to the creation and reservation of a Government license that provides for the reproduction, publication, release, or other uses of a final manuscript for Federal purposes.

    (d) Exclusions- Each Federal research public access policy shall not apply to–
      (1) laboratory notes, preliminary data analyses, notes of the author, phone logs, or other information used to produce final manuscripts;
      (2) classified research, research resulting in works that generate revenue or royalties for authors (such as books) or patentable discoveries, to the extent necessary to protect a copyright or patent; or
      (3) authors who do not submit their work to a journal or works that are rejected by journals.

    (e) Patent or Copyright Law- Nothing in this Act shall be construed to affect any right under the provisions of title 17 or 35, United States Code.

    (f) Report-
      (1) IN GENERAL- Not later than October 1, of each year, the head of each Federal agency shall submit a report on the Federal research public access policy of that agency to–
        (A) the Committee on Homeland Security and Governmental Affairs of the Senate;
        (B) the Committee on Government Reform of the House of Representatives; and
        (C) any other committee of Congress of appropriate jurisdiction.
      (2) CONTENT- Each report under this subsection shall include–
        (A) a statement of the effectiveness of the Federal research public access policy in providing the public with free online access to papers on research funded by the Federal agency;
        (B) a list of papers published in peer-reviewed journals that report on research funded by the Federal agency;
        (C) a corresponding list of papers made available by the Federal agency as a result of the Federal research public access policy; and
        (D) a summary of the periods of time between public availability of each paper in a journal and in the online repository of the Federal agency.
      (3) PUBLIC AVAILABILITY- The Federal agency shall make the statement under paragraph (2)(A) and the lists of papers under subparagraphs (B) and (C) of paragraph (2) available to the public by posting such statement and lists on the website of the Federal agency.

Creative Sues Apple Over iPod Interface

As I mentioned the other day, Creative Labs’ $100 marketing effort to overtake Apple has led to Apple controlling 75 to 80 percent of the portable MP3 player market, while Creative posted a $114 million loss in its recent 3rd quarter financial results.

So what do you do if you’re in Creative Labs’ shoes? Of course, the only recourse is to sue Apple for patent infringement.

According to an article at MacNN,

The patent is for an invention that “provides an efficient user interface for a small portable music player. The invention is suitable for use with a limited display area and small number of controls to allow a user to efficiently and intuitively navigate among, and select, songs to be played. By using the invention, very large numbers of songs can be easily accessed and played,” according to the filing at the US Patent office.

Specifically, it describes overlapping categories that would allow for selection of the same song via different categories and for multiple functions assigned to the same device button or control. The patent also calls for organization based on metadata associated with each track as well as internet-based sources such as CDDB as well as the now popular playlists for organizing music.

“The creation of playlists is one technique to organize the playing of songs. A set of songs can be included in a playlist which is given a name and stored. When the playlist is accessed, the set of songs can be played utilizing various formats such as sequential play or shuffle,” the company wrote its patent filing.

Given how Creative Labs has pretty much ripped off the iPod look-and-feel, using over something as basic as overlapping metadata categories and playlists is beyond absurd. And it will probably prove as effective as Creative’s marketing campaign to unseat the iPod.


Creative sues Apple over iPod interface. MacNN, May 15, 2006.

Patently Offensive — The Computer Solitaire Shakedown

Thomas Warfield updated his blog the other day with one of the most absurd patent disputes I’ve heard of lately. Warfield’s company makes some of the best computer solitaire games available (I know because they’re the only games that my wife will interrupt Civ2 to play). Now he’s receiving letters from a company claiming that computer solitaire games infringe on patents the company owns — specifically, 5,823,879, 6,183,366 and 6,264,560.

Do Drug Patents Present a Major Obstacle to AIDS Treatment in Africa?

For the past several years AIDS activists have charged that patents on HIV antivirals has significantly harmed the ability of African nations to respond to the AIDS crisis. A new study published in the Journal of the American Medical Association, however, suggests that this is simply not the case.

Researcher Amir Attaran, an adjunct lecturer in public policy and a researcher at the Center for International Development, examined the status of patents on anti-AIDS drugs and found that, in fact, most such drugs were not patented in African nations. Looking at the patent status of 15 drugs in 53 African countries, they found only 172 actually existing patents for such drugs out of the 795 patents that might exist. In fact, in several African countries there were no patents on any existing HIV drugs — and, therefore, no legal barriers to using generic versions of patented AIDS drugs — but almost no treatment of AIDS patients with those antivirals.

Not surprisingly, the real obstacle to treating HIV in Africa is the continent’s endemic poverty. According to Attaran, even with generics AIDS treatment is still going to cost $350 per person in countries that typically budget less than $10 per person in their health budgets.

Attaran could have also added to the obstacles state resistance to the reality of the AIDS epidemic. Just this month, for example, South Africa’s government stepped into a major controversy over its continuing suppression of an internal government report on the AIDS epidemic in that country. The report was suppressed largely because it called for the widespread use of anti-HIV drugs — an approach which continues to be opposed by South African president Thabo Mbeki (Mbeki has, in the past, turned down large donations of HIV drugs in accordance with this policy).


One Expert’s Opinion: Amir Attaran Says New Study Shows that Patents Are Not the Obstacle to HIV Treatment in Africa. Kennedy School of Government (Harvard), Press Release, October 22, 2001.

Do patents for antiretroviral drugs constrain access to AIDS treatment in Africa? Amir Attaran, Lee Gillespie-White, Journal of the American Medical Association, 2001;286:1886-1892.