The simultaneous announcement of the Blackboard patent [3 MB PDF] and the issuing of the complaint [200 kB PDF] against Desire2Learn on July 26, 2006, is one of those events that immediately changes our perception of ourselves and what we do. The emotions - disbelief, anger, frustration, resignation, and denial - show how unexpected, shocking, and important this event was to higher education. As bloggers educate us on patents, Blackboard business strategy, and the history of e-learning, three sharply different issues are emerging: policies to encourage innovation; the commercialization of teaching and learning; and collaboration among higher education and its suppliers.
Perhaps alone, federal policy in the U.S. is based on the belief that patents will encourage research and innovation. Interpreting the will of the U.S. Congress, the courts seem to dare a patent examiner to deny a patent, and encourage immediate and harsh penalties against accused, but not yet judged, infringers.
Many U.S. universities have technology transfer offices [1.5 MB PDF] that encourage patents, actively enforce them with several hundred attorneys and staff, and use patent litigation firms that bundle, tie and enforce patents as any other patent “troll.”
Referring to U.S. universities, Derek Bok [100 kB PDF] cautioned, in Universities in the Marketplace: the Commercialization of Higher Education (published by Princeton University Press, November 2004, ISBN 0691120129):
"In seeking royalties, [universities] are really doing what the law allows and Congress clearly meant to encourage. Since there are plausible reasons to support the governments’ policy, any argument to the contrary should be taken up with Congress, not the universities."
So those who want to eliminate patents for software or business methods must focus their attention on Congress knowing that many universities researchers and university presidents will have a different perspective. As Florien Müller [200 kB PDF] warns, those in Europe could soon share U.S. patent policies and practices. No relief is likely to emerge in the U.S. for years, if ever.
Education patents and the new licensing environment may further commercialize teaching and learning. The Blackboard patent is not alone, but representative of many that have been issued - and many more that are pending - in the U.S. that could apply to any learning system. It is unlikely that all claims of all patents will be found invalid before someone wins an injunction or judgment, and cease and desist letters and license invoices follow. We should be prepared for a new environment of restrictions, licensing, and confrontation of our suppliers.
Now any choice of software, any method of instruction, and any choice of content will have to be viewed from a new perspective of risk assessment. This moves the decision from teaching faculty to business officers and attorneys who are least prepared to judge the effect on education and research.
Derek Bok commented:
"Scholars, especially in the traditional disciplines, have deliberately chosen academic life in preference to the ways of commerce, in part because they look upon the search for truth and knowledge as a worthier calling than the quest for material wealth."
As the community learned on July 26th, the practices of patent litigation are inconsistent with how higher education expects colleagues to be treated. Blackboard’s first communication to Desire2Learn - a court complaint to John Baker, the company's CEO, while hosting a conference of D2L customers - was not acceptable in higher education even if it is the recommended practice in patent law.
There are steps that can be taken to create a different environment than patent litigation. As Creative Commons provides an increasingly used alternative to standard copyright, higher education could seek similar preventive patents.
Michael Feldstein has encouraged suppliers to adopt an "open patent" approach, used by IBM Corporation and Sun Microsystems, that seeks to protect rather than profit from patent litigation. Their patents protect against others being awarded patents and assures the community they will never be subject to litigation or licensing.
In its January 2006 conference and subsequent comments, the U.S. Patent and Trademark Office appears to encourage the availability of a repository of prior art. The U.S. Patent and Trademark Office now routinely uses a database of prior art made available by IBM. If developed well and completely, a repository of prior art for learning and teaching could also become routinely used patent examiners, making unnecessary post-award challenges to patents. The Sakai Foundation seems moving toward a major re-examination initiative that may limit the scope of current and future education patents, and will need such a collection of prior art.
Now uncertainty about the future effect of patents has a corrosive effect on innovation and distracts colleges and universities from the critically needed focus on teaching and learning.
There is a personnel perspective to collaboration. The employees of Blackboard had been our colleagues. I have often referenced their White Papers, learned from their presentations, and seen effective use of their software. But as Derek Bok also points out:
"Commercialization can undermine collegiality and trust within academic communities by creating divisions and tensions that did not previously exist."
Meanwhile Alfred Essa reminded us of one difference when he published the wealth available to those we know at Blackboard.
Referring to collaborative work in standards bodies, Michael Feldstein reported:
"JEDEC’s reputation as a standards body was shredded [by the deception of patent seeking Rambus]." " … Consequently, what the industry has lost is its faith in the standardization process. … That's a real detriment to the whole industry."
At the IMS Common Cartridge meeting [100 kB PDF] this week only a few of the participants were aware of the potential impact of patents and now became suspicious of the motives of others. Fewer were aware of the wealth that some businesses achieve through aggressive business practices including the manipulation of standards. The word patent was never mentioned at the briefing, even by the very few who were aware of Pearson’s patents. Without open discussion the future of collaboration remains untested and uncertain.
The U.S. Secretary of Education's Commission on the Future of Higher Education [400 kB PDF] has listed the many ways higher education has disappointed its students and the public. We know that educational technology is necessary to achieve the goals for effective teaching and learning. It is unfortunate that at this critical time the "new" commercialization of teaching and learning interrupts, distracts, and attenuates the focus on mission.
Jim Farmer's biography [20 kB PDF] - jxf [AT] immagic.com.
Note - 15 September 2006. Readers of this piece may be interested in Desire2Learn's 14 September initial court response to Blackboard's patent infringement claim [124 kB PDF].