A Battle Over Online Learning

September 14, 2006

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Over recent weeks, a dispute has been taking place that is part of a contentious area of the law concerning patents awarded not only on invented objects, but on ideas and processes. Blackboard Inc. has been awarded a broad patent establishing its claims to some of the basic features of the software that powers online education — nothing less than the company's ownership of the very idea of e-learning.

Here at IMT, we're all for patenting your creations and reaping the benefits. Since their inception, however, patents have seen ridiculous amounts of money change hands simply to avoid a fight, have seen businesses crash and burn over wording, and have evoked a great many other criticisms and controversies.

Just this month, in fact, Bristol-Myers Squibb's board ousted Chief Executive Peter Dolan over his handling of negotiations with Canadian generic drugmaker Apotex. Dolan botched a patent fight with Apotex over BMS's blockbuster anti-clotting drug Plavix. Worried that he might lose the fight, Dolan tried to buy off Apotex to prevent the generic maker from coming to market. But the move backfired: Apotex flooded the market with millions of generic copies of Plavix, slashing BMS's sales by hundreds of millions of dollars.

The ironic kicker? Dolan had no need to pay off Apotex in the first place. According to an Aug. 31 ruling in U.S. District Court, the Plavix patent wasn't as vulnerable as Dolan had feared.

This is simply a case of questionable (unethical?) patent practices, though, like patent trolling. Over recent weeks, a dispute has been taking place that is part of a contentious area of the law concerning patents awarded not only on invented objects, but on ideas and processes. In theory, patents can be awarded on a whole range of ideas as long as they are "non-obvious" and the Patent Office sees no evidence they have been described before. Patents have been awarded for everything, The Associated Press recently noted, "from types of credit card offers to methods of teaching a golf swing."

In a move that has shaken up the e-learning community, Blackboard Inc. has been awarded a patent establishing its claims to some of the basic features of the software that powers online education. The broad patent on e-learning technology included "core technology relating to certain systems and methods involved in offering online education, including course management systems and enterprise e-Learning systems." Upon being awarded the patent, the company immediately sued competitor Desire2Learn, a learning management system developer.

The patent, awarded in January but announced last month, has prompted an angry backlash from the academic computing community, which is fighting back in techie fashion — online.

Critics say Blackboard's patent doesn't refer to any device or even specific software code. Rather, it describes the basic framework of a learning-management system (LMS). Simply put, Blackboard says what it invented isn't specific learning tools, but the idea of putting such tools together in one big, scalable system across a university — nothing less than Blackboard's ownership of the very idea of e-learning, which more and more organizations are exploring to increase the effectiveness of their training efforts.

Companies have used online learning successfully for years, as implementing a quality e-training program can offer many benefits to businesses, including reduced training time, cost savings (e.g., cut travel expenses for learners and instructors, as well as cut learning-facility costs), easier delivery and immediate and constant access to training material. Further, it offers an integrated approach to provide workers the knowledge they need to possess to get the job done efficiently and safely.

Universities are particularly concerned, because, although many use off-the-shelf systems sold by Blackboard already, others use rival companies such as Desire2Learn, or mix and match to meet their own needs. One size rarely fits all because universities are decentralized and have such varied systems. The fear is that universities, afraid of being sued for patent infringement, would stop that mixing, matching and experimenting and that innovation would suffer. (Interestingly, most LMSs started out as university research projects — including Blackboard itself, at Cornell.)

According to the Sloan Consortium, 2.3 million U.S. college students were taking at least one course entirely online in the fall of 2004 — a figure that is likely higher now and doesn't include "hybrid" classes with both online and in-person components. Most of those students use so-called "Learning Management Systems," which provide the electronic backbone for online education. For-profit and traditional universities are investing millions in these systems, hoping the upfront investment will pay off down the road with a more efficient teaching model. About 90 percent of colleges use some kind of LMS, according to data from Eduventures, a Boston company that does research and consulting on online learning, and they are used in about 46 percent of classes. Blackboard has about 60 percent of the market for those systems.

If Blackboard's patent is allowed to stand, critics say, it could quash the cooperation between academia and the private sector that has characterized e-learning for years.

Said the Sakai Foundation, which has retained an open source attorney to fight the patent, in a recent announcement:

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.

See the Wikipedia entry offering a plain language translation of the patent. There, recently noted O'Reilly Radar, someone used clear, plain language to illustrate "just how far patent filings have come from their original intent of instructing people about how a purported invention works, and how far they go to obscure by legal language the appropriate prior art."

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