USPTO Rejects Blackboard Patent Claims

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USPTO Rejects Blackboard Patent Claims

3/28/2008

By David Nagel

"Companies like IBM and Hewlett-Packard, which were very strongly in favor of the patenting of software in the early 1990s, have now come to realize that the policy was a mistake," he argued. "They now see, as the free and open source software world saw from the very beginning, that this promises to be more of a nuisance to producers and customers, inventors, designers, and businessmen around the society than it can possibly do good.

"They have learned, as we suggested from the very beginning, that overprotectiveness breeds cost, nuisance, out of control litigation, and the kind of 'gotcha' mentality in which everybody hides in the bushes with their government-issued monopolies like a lead pipe in the dark and waits for somebody with an invention to come along and hits them up against the backside and takes their money."

Blackboard: 'No Effect on the Validity of the Patent'
Meanwhile, Blackboard, for its part, said it isn't going away. It issued a statement Friday afternoon, saying that the patent is still alive and kicking.

"This Office Action was expected and is the first step in a reexamination process that often takes years to complete. It has no effect on the validity of the patent, the lawsuit between Blackboard and Desire2Learn or the pending injunction against Desire2Learn that will go into effect on May 10th, 2008, precluding ongoing sale or use of their Learning Environment products and services," the company's statement read.

The company said that with reexaminations of this type, the patent holder goes through a sort of negotiation process, as during the initial application for the patent, and that 90 percent of such reexaminations result in the upholding of the patent.

"With that in mind ... we remain very confident in the validity of our patent and that the Patent Office will agree with the ruling in Federal Court last month," the company's statement read. "While the reexamination process moves forward, the issued patent will remain both valid and enforceable."

Blackboard's complete statement can be found at the end of this article.

SFLC's Moglen had not seen Blackboard's statement at the time of our interview earlier in the day. However, he did have some advice for Blackboard, advice the company does not at this time seem to be interested in taking:

"We believe that Blackboard should now move quickly to make complete peace with the free and open software world by indicating that it will never again under any circumstances invoke any patent claims now existing or after acquired against any free software program," he said. "Unless they feel like making peace there will continue to be war. This patent is the first casualty. But any other patent that Blackboard ever comes to acquire will be a future casualty of the same failure on their part to observe good terms of equal and appropriate collaboration in educational software design and implementation."