Thoughts on CMS Patent Controversies

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Opinion

Thoughts on CMS Patent Controversies

8/15/2006

By Frank Tansey, Co-Editor

Head down and working on the road, I missed last week’s court filing by Blackboard, Inc. against Desire2Learn, Inc. for infringement of Blackboard’s recently-received course management system patent. Arriving back home, it didn’t take too long for me to begin hearing the chatter across the eLearning community – first a press release from a Blackboard competitor, then a series of posts in a number of blogs I follow. Then a quick Web search revealed the rising interest in this issue within the eLearning community.

A quick review of the posts is decidedly anti-Blackboard. Comments frequently describe the patent as overly broad and as a threat to all forms of course management system. A significant number of posts cite the existence of prior art, including systems that predate the existence of Blackboard even as a company. In fact, a number of individuals are contributing to a History of Virtual Learning Environments on Wikipedia as proof that the patent should not have been granted in the first place.

When I contacted Blackboard to discuss this issue, I was routed to Matt Small, senior vice president and general counsel for Blackboard. Mr. Small paints a rather different picture. His take was that the patent was not too broad and covered only certain functions of course management systems. His point was that, prior to the creation of the product that was the basis of the patent, course management systems were not Enterprise grade. They functioned on a smaller scale and didn’t provide the scope of features for which the patent was granted. He further contests the assertion that Blackboard has received a patent that covers all functions of a CMS as some have claimed.

In our discussion, Mr. Small cited one example from the 44 items covered in the patent: the concept of a single user having multiple roles in multiple courses. It is hard for someone involved in eLearning for so long to fully turn the clock back to 1999, the initial filing date for the patent, to definitively challenge the claim that this was a new feature at the time. Still, from recollection of other systems that predate the filing, I would have to believe that this was not a newly invented concept. As it is appropriate to disclaim, however, I am not a lawyer, and the intricacies of patent law are beyond my field of expertise.

Patents, especially conceptual software patents, clearly divide much of the software and educational community into warring camps. Should the hard work in creating a new form of software be protected? Certainly, if the creator finds it necessary to protect these creative efforts from competition, a patent may be an appropriate tactic. On the other hand, there a long tradition in the academic community for sharing the results of similar hard work and dedication so that others may pick up the torch and advance the endeavor. So is this just a case where the culture of business to protect its interests is clashing with the culture of the academy to foster research and share the results with the world? I think not.