Blackboard pledges no action against open source courseware

In a deal worked out with higher education groups, electronic courseware vendor Blackboard this week promised not to enforce its controversial patents against open source and homegrown software systems.

The pledge is intended to quell the anger and outrage which flared up last year after the Washington D.C. software vendor, the leader in course management software for education, announced it had been awarded U.S. patents for parts of its software. Course management applications are widely deployed in education; many are homegrown, and more recently, open source projects, such as that sponsored by the Sakai Foundation, are emerging.

Blackboard, however, reserves the right to enforce its patents against commercial software rivals, and says that one company, Desire2Learn, is infringing. Desire2Learn denies the allegation, and has filed a counterclaim in the federal case, alleging “intentional misconduct” by Blackboard officials in failing to notify the U.S. Patent and Trademark Office (USPTO) of “prior art” -- ideas and inventions by others that could undermine a patent’s claims. That case is scheduled to start trial a year from now.

Reactions to Blackboard’s pledge this week varied widely, indicating there is still widespread skepticism if not hostility toward Blackboard.

Two key higher-education groups, EDUCAUSE, an influential group of IT professionals, and the Sakai Foundation, which coordinates the Sakai open source course management software, worked with Blackboard for two months on the pledge. Both groups had been highly and publicly critical of the original patent award. While welcoming the pledge, they say it “introduces complexity” and doesn’t resolve questions about the patent’s validity.

The boards of directors of the two groups crafted a carefully calibrated joint statement. The patent pledge is “a step in a more positive direction for the community, to the extent that it offers some comfort to a portion of the academic community that uses open source or homegrown systems.” The document did commend Blackboard for “the inclusion of pending patents, the clarification on the commercial support [question], customization, hosting or maintenance of open source systems, and the worldwide nature” of the pledge.

But both groups remain concerned about Blackboard’s possible actions against vendors that bundle open source and proprietary code. “We remain concerned that this bundling language introduces legal and technical complexity and uncertainty which will be inhibitive in this arena of development,” reads the statement.

Finally, the groups repeated their conviction that the patent is “overly broad, and that the U.S. Patent and Trademark Office erred in granting it.”

For some, it’s the patent itself that’s the critical issue. “The central issue remains,” says Frank Lowney, director of Web Enabled Resources GCSU Library, Georgia College & State University, in Milledgeville. “The USPTO has agreed to review the patent and so we need to see what comes of that process. This is but one of a mounting number of challenges to the very idea that software is patenable in this fashion.”