Patent problems pending

A row over a patent in the US is causing a storm in UK academics' tea cups.

A US company sues a Canadian internet-based technologies company over alleged patent infringement and raises the prospect of years of costly litigation in US courts. This scenario might refer to Research in Motion, the company behind the Blackberry device - incidentally, recently the subject of some ground-breaking e-leaming materials commissioned in the UK by BUPA for its Blackberry-using managers. However, it could now also apply to Desire2Learn, a company producing a learning management system (LMS).

Blackboard, a US-based LMS company that recently merged with Canadian-based WebCT to become the largest company in the market, took the academic community by surprise a couple of months ago when it announced that it had been granted a patent in the US and expects similar patents to be granted in Canada, Australia and the European Union. It promptly began a patent infringement suit in a Texas court against Desire2Learn. Subsequently, waves of consternation, shock and even anger - a strong emotion for our mild-mannered e-learning community - rippled around the world.

European reaction

In the UK, Becta issued guidance to companies involved in the UK Schools sector Learning Platform Tender. Becta pointed out that the UK is unaffected by a US patent; the European Patent Office (EPO) procedure is complex, lengthy and can take at least five years and, in any case, the patents will only be enforceable if there is no valid counterclaim.

Meanwhile, Learning Light (LL) expressed concerns over the international implications. Mark Pittaway, LL's CEO, said: "With the European e-learning community and market at its current size it would be disappointing if one firm's actions were to artificially limit the scope of this industry."

Having analysed Blackboard's patent claims, Michael Feldstein, an assistant director at the SUNY Learning Network and a member of the Editorial Advisory Board of US-based eLearn magazine, believes that Blackboard's claims are "far broader than a traditional LMS and could be used to define any system used to interact with course-like structures on the internet". His blog claims that the LMSs that may infringe Blackboard's patent are ANGEL; Bazaar; Desire2Learn; dotLRN; eCollege AU+; IBM Workplace Collaborate Learning; LON-CAPA; Moodle; Saba Learning Suite; Sakai and the SumTotal Enterprise Suite.

Feldstein advises those opposed to Blackboard's patent to find either existing LMSs that were publicly known or articles that were published describing such systems in 1999. That would be a strong case for "prior art" and so invalidate the patent. However, showing that each of the features listed in the claims existed separately in products is insufficient.

Widely available ideas

Proving prior art is also key for the independent online and e-learning consultant Seb Schmoller. Writing on the web, Schmoller said: "Thinking back to the Learning To Teach On-Line course of nearly 10 years ago, I recall the existence of delivery over the internet, with materials, tasks/assignments and discussion board and chat system all accessible by browser; a browser-based system for amending the materials; learners and tutors all over the world, with learners enrolled to several of the institutions in the then South Yorkshire Further Education Consortium, and tutors employed by several institutions. We used the widely available ideas, know how, and open source and proprietary software that were available at the time - and nothing we did was special."

The Open Source Advisory Software Service, based at Oxford University Computing Services, is advising against over-reacting to the Blackboard patent. It states that: "Blackboard appears to be following commonly accepted patent portfolio procedures as practised in the US and elsewhere.

"Sometimes patents are sought for defensive purposes. This is common among large patentholding companies such as IBM, Sun, even the BBC. In some cases, explicit undertakings are given to ensure that many of the patents held will never be exercised against an open source software project."

Concerns of open source community

The open source software community is particularly concerned about this issue, principally because Moodle and Sakai are freely available and so represent a competitive threat to proprietary LMS vendors such as Blackboard. Consequently, the Sakai Foundation has announced that it is retaining the services of the Software Freedom Law Center to evaluate the impact on the educational community of the Blackboard patent and to advise on related legal matters. And several online collaborative workspaces (wikis) have sprung up to pool knowledge about the history of online learning environments, especially to provide evidence of prior art.

But, while there may be some doubt about the validity of Blackboard's patent, an as yet nascent but distinguishable trend could ultimately make the whole issue irrelevant. This is the growth of Web 2.0style innovations - such as hosted applications and 'mash-up' combinations of applications - adopted by companies including Google and Yahoo! in the consumer space, which are predicted to spread to the business software market as well.