USPTO Rejects Blackboard Patent Claims

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USPTO Rejects Blackboard Patent Claims

3/28/2008

By David Nagel

"Not only do we have nothing more to say [to the Patent Office], we think there is nothing more to say. We think that Blackboard has nothing to say and ought not to say anything. There's nothing left of this patent. We were correct in the first place."

He said that, in fact, Desire2Learn's filing of an inter partes reexam request only muddied the process.

"We told Desire2Learn that it would take only one shot from a correctly aimed gun to kill this patent," he said. "We regret that they didn't just let us do it. The fact that they have thrashed around as they have thrashed around has only made matters more difficult."

That said, however, "The patent was dead on arrival. It was a foolish patent poorly thought through [that] should not have issued. The conduct of Blackboard in aggressively pointing that patent at other people and threatening them with it was unconscionable conduct."

Blackboard To Be Target of SFLC
He said that, owing to Blackboard's behavior with the Alcorn patent, SFLC will continue aggressively targeting Blackboard's efforts to patent education-related software.

"We told Blackboard that unless we were offered terms of safety and permanent security against such misbehavior by Blackboard, that the free software community, acting through the Software Freedom Law Center, would eliminate the patent and would prohibit Blackboard from holding any further patents at any time in the future. We still intend to behave exactly as we said. We believe the act of threatening aggressively to harm businesses for the employment of techniques which Blackboard had no right to patent was unacceptable, anti-competitive behavior by a poorly socialized entity that does not play well with others and apparently does not understand that education is a collaborative activity."

He said that a poor decision on the part of the government gave Blackboard what amounted to "munitions," and the company "used those munitions to intimidate people engaged in learning. That's as disgraceful a form of economic crime as there is." He added that the education community should be pleased to hear that Blackboard has now been deprived of the opportunity to commit more "thuggery."

When asked how such a patent--which many consider to be blatantly flawed--got through the Patent Office in the first place, Moglen said that the USPTO is not to blame entirely, that it was facing inherent difficulties in this situation, including the quality of examiners available. With the rapid growth of technology in the country, he said, it's not surprising that the Patent Office had trouble finding enough examiners and training them properly for the task. In addition, he said, the USPTO extended its jurisdiction over computer software fairly late in the game and so did not have the body of historical patent information that might have otherwise prevented such a patent from going through.

But he also argued that this is an area in which the USPTO should not be involved--that its jurisdiction and scope should not extend to computer software.