Thursday, August 31, 2006

More Blackboard Spin Control

Two new things appear on the Blackboard Patent Info page. The first is a second page of FAQs where they clearly are speaking to some of the information (they say it is misinformation of course) from the blogosphere. The second item is a transcript and comments from an interview between BB counsel Matthew Small and Paul Bacsich, Member of the ALT Board of Trustees (Association for Learning Technology) in the UK.

On the BB page, they talk down to the audience rather severely and often.

  • "A common misunderstanding is that the description in the abstract or specification governs what the patent covers. Focusing on the wrong section of the patent can be misleading and has caused some people to think that the Blackboard patent covers all of e-learning. To properly understand any patent, you must do a careful phrase-by-phrase reading of the claims."
  • "This detailed element-by-element analysis is necessary to evaluate the scope of the patent. Be wary of any analysis of this or any other patent which does not involve an element-by-element discussion of the claims as each element is a limitation on the scope of a patent."
  • "The inherent complexity of patent law is no doubt a leading cause of confusion about the Blackboard patent. ... We believe that an important first step is for all participants to have a common understanding of the Blackboard patent and patent law in general."
See, they're just a bunch of educators trying to help out the uneducated masses.

In the interview, Small states:
  • "While falling outside a patent only involves falling outside of the independent claims, invalidating a patent is much more difficult. It involves a showing that the patent is invalid “by clear and convincing evidence” (a very high standard of proof), rather than merely “by the preponderance of the evidence” (a lower standard of proof)."
  • "Blackboard believes that, in the case of Patent 6988138, the architecture of Blackboard’s products is irrelevant (i.e., the patent is technology neutral). Thus if alleged prior art existed in a different paradigm, Blackboard would want to know about it. That said, Blackboard has not taken its action lightly, having spent months doing due diligence and infringement analysis prior to instigating court action against Desire2Learn. It sees the Wikipedia History of VLEs as a great compendium, but not as a threat. Certainly, if there is prior art out there relating to the independent claims in the patent, then Blackboard is keen to know of it."
  • "Desire2Learn is a commercial competitor of ours in the US. We believe Desire2Learn infringed our patent. We believe that discovery and the legal process will show clearly what transpired. We believe that in such circumstances a company like Blackboard should be able to do something to protect itself."
They are quickly on their way to becoming the most hated vendor in high ed. Not that they care.

Wednesday, August 30, 2006

Net Neutrality Links

The debate continues to rage, everywhere except Congress that is. Some people paint this as a non-partisan issue but it seems pretty clear to me that Dems are mainly on the side of net neutrality and Pubs are mainly on the opposite side. I seriously doubt that there are more than just a couple of issues left in the U.S. that don't split down party lines.

Since the Republicans are largely against this, I'm somewhat surprised that the MnSCU Board of Trustees adopted a resolution supporting net neutrality at their June meeting. I can't find any proof of that yet in the form of official minutes, but I was there and saw the presentation and heard their vote of support. My surprise at this action is that all (or nearly all) of them are appointees of the MN Republican Governor who most likely does NOT support net neutrality. I say most likely because my research (web searching) hasn't turned up any evidence of his position at all.

At any rate, I support net neutrality in general, but think that the arguments on both sides are somewhat flawed. I guarantee you that I think that we are all in big trouble if the Telcos gain near total control over Internet traffic. Here are some interesting links:

MySpace: a perfect example of ugly MySpace sites....but much more informed than most.

Republican FTC Chief is against it: go figure

Eli Noam says there is a third alternative to consider.

N.Y. Senator Schurmer (D) supports net neutrality.

Majority of State Legislatures opposes it (bunch of Pubs, of course).

Interesting 25-year Perspective from the Gustavus MCS Blog (Max Hailperin)

Wednesday, August 23, 2006

MnOnline Skypecast Recap

I am planning to hold a series of conversations around the state this year to gather input regarding Minnesota Online. As chair of the MnOnline Council for the upcoming year, I want to make sure that all interested voices are heard as we work on determining agenda items throughout the year.

As a first attempt, I hosted a 90 minute Skypecast on August 16. I was happy to have about 20 people join the conversation for part or all of the session. I also plan to hold open forums via ITV as well as by visiting some of the campuses during the year. One of my concerns about MnOnline is that not enough people know what has been going on with MnOnline and many people don’t feel that they have a voice at the table.

During the course of a few blog posts, I will try to capture most of the conversation. This first post will deal with the input from only one of the participants. James from Metropolitan State said:

  1. MnOnline should develop a Common Media Server or ensure that media objects are added only into the Desire2Learn LOR (Learning Object Repository).
  2. What about a MnOnline resource list of persons willing to share specific topics of expertise? This might help the smaller campuses tap resources on specific topics they need, such as:
    1. phone / email support,
    2. visits to remote campuses for workshops,
    3. willingness to serve on MnSCU-wide collaborative development (for training materials, orientation learning objects, guides & advice to students, etc.)
  3. What is the state of the integration of common user-IDs throughout the state to aid in making "seamless" the registration for and participation in classes from multiple campuses (to "build a degree" from multiple online classes / multiple sites)?
Answering #1: The major concern here is whether we allow large multimedia files to be loaded into the “Content” area of D2L (actually the "Manage Files" area) which is suspected of providing a rather large hit on system performance. We can expect that behavior to continue unless we provide alternate ways and means for delivering rich multimedia content. Al Essa, deputy CIO for MnSCU added that this is indicative of several areas where we need to have system-wide standards for usage and performance within D2L. This is a topic that rears its head at least once or twice a year but nothing has been done about it. Al indicated that this is one of the items that the soon-to-be-formed IMS Advisory Council will deal with. Just as a reminder, the MnOnline Council does not have a direct advisory connection with D2L.

Answering #2: This is a good example of the type of information/expertise sharing that we need to encourage within MnSCU. There are other examples that came up during the conversation, but this is the type of info that should be collected and shared during the next academic year. Similarly, the campus CIOs within MnSCU are developing a list of campus expertise related to I.T. concerns that they will share with each other. We may be able to use that as a model to develop a list of expertise related to teaching with technology, D2L training, and other things related to the academic experience and MnOnline.

Answering #3: During the Skypecast, we discussed the seamless project a little bit with Les Bakke (CIO at MSU Moorhead) giving the group an update on the current state of the Identity Management (IdM) project within MnSCU. This project is one of the most crucial things winding its way through the system at this time. Much of what we want to accomplish in MnOnline depends upon the successful completion of this IdM project, but it is not really a project that MnOnline has direct responsibility for.

The bigger part of this question (for MnOnline to deal with) deals with whether MnOnline should more fully enable the “build a degree” concept or possibly grant degrees. This discussion received thorough debate at the time that MnOnline was formed, but there are some (including me) who think that maybe the time has come for this discussion to begin again. There may be a few areas where a “centralized” degree offering might make a lot of sense. For example, how many different two-year schools need to offer an online Associate in Art degree? This is a pretty generic degree made up primarily of Minnesota Transfer Curriculum courses. Do we need 15 schools all trying to do their own things in the online environment with the A.A. degree, or should they collaborate together to offer broad choices to all students pursuing this degree online?

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Response from PIA

Last night I received a thorough response via email from the President of the Professional Investors Alliance. His message was sent in reply to my earlier post about the Patent Reform Act of 2005 that is currently being considered in D.C.

I have invited Mr. Riley to join me in a recorded audio interview (or possibly a Skypecast) to address many of the points that he made in his note to me. I hope he replies affirmatively, and will post info here if there is any. Here is a brief snippet from the email: "...the patent system is timeless and works well, it is the patent office which has problems. We need to fix the office which needs management cleaned up and to triple the number of examiners."

He points out a few of the PIA views about the corporations who are supporting the Reform Act (Deform Act, as they call it on their website) and what their motives are.

About the PIA: "
The Professional Inventors Alliance USA was created more than a decade ago to protect American invention and encourage innovation. American inventors saw a need to track congressional legislation and federal policy that impacts independent inventors, small and medium-sized businesses and colleges and universities. The Alliance is the premiere organization in the nation, providing independent inventors a united voice in order to improve public policy." (copied from email, emphasis mine)

Sunday, August 20, 2006

Blackboard Strategy?

So I'm sittin' on the couch Sunday night thinkin' bout the Blackboard vs. Desire2Learn debacle. I start thinkin' that it's not all that unusual for no one to have known about the patent granted back in January because it's not very likely that interested parties (e-learning types and similar rogues) are scanning the output of the USPTO on a regular basis looking for goofball approvals. Still I was curious about how this remained silent for approximately six months before they announced it in a press release and almost immediately sued D2L.

So those thoughts are running through my head and slowly my head tilts slightly to one side (the left, it always seems to go that way, don't know why) and I say "Huh?!" Blackboard is a publicly traded corporation and they clearly are all about "enhancing shareholder value" (bottom of page 3, or you can just trust me), so why did they not leverage this news during the six months between patent approval and press release? If this patent is valid then wouldn't it have tremendous financial value to Blackboard and the shareholders? I don't think there's any question about that. Why, then, did they not trade on this value over the first seven months of 2006?

Just seems like a very odd time for them to be silent, except of course for that whole "we're buying WebCT but we're not a monopoly" dealio. So as I look back at various stock analysts' comments about Blackboard, I'm struck by how very different they should have been if they had known about a patent that was already approved and just sitting there waiting to build shareholder value. For example: go to The Street dot com and search for BBBB. None of the articles written in 2006 mention anything about the patent, which seems like an odd bit of information to withhold from stockholders and stock analysts.

One last comment about Blackboard's profitability. The Washington Times published an article August 15 written by Kara Rowland titled "Blackboard sees 32% Growth." In the article she writes "The educational software market continues to grow, and so does the bottom line of Blackboard Inc." She mentions that revenue jumped 32% during the second quarter of 2006 compared to 2005, but that the company "reported a net loss of $6.3 million (23 cents per diluted share) compared with earnings of $6.1 million (21 cents) a year ago." Now here's a topic that I actually know something about. I taught accounting for 17 years. The infamous "bottom line" that she refers to is Net Income (actually Net Loss in their case). Leading off the article she says that their bottom line is growing....based on their corporate ethics, they deserve to have their bottom line "grow" again at a similar rate in the upcoming year.

Friday, August 18, 2006

Snakes on a Blackboard

Somebody had to do it. I was going to make a few jokes about this not being snakes on a blackboard, but rather the snakes at Blackboard, or maybe the latest group executive photo from them; but I don't think it would be appropriate for me to go down that road. It would be fine if you did though.
You might also notice that I didn't really use their logo for this. The snakes came from Microsoft, of course (clip art, that is).
BTW, I did see the movie at the sneak preview last night because I love that kind of crap, and yes, it was fun in a campy, no academy nomination sort-of-way.

Thursday, August 17, 2006

Quick Review

In case you've been in a cave for the past three weeks (after all, it is summer break in higher ed), here is a short recap from the Education Technology Group of all the Blackboard vs. Desire2Learn patent dispute goings on. It includes links to many pertinent sites.

For longer, more entertaining reading, the following three bloggers have lots of great info:
Michael Feldstein: e-Literate
Stephen Downes: Stephen's Web (use his search box for Blackboard)
Al Essa: The NOSE

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Tuesday, August 15, 2006

Small World

Had an interesting evening sitting around the house by myself while the family is enjoying the last few days of their summer vacation out at the lake. I was just web surfin' a bit when I got a little beep from someone sending me a message in Desire2Chat. This guy was reading my blog and wants to know if I'm available to talk for awhile. I say sure so he Skypes me and we spend about the next 55 minutes talking about lots of cool things.

He's just moved to an Asian country where he's taken a job with a company (I'm sworn to secrecy) that is developing a learning toolkit that is totally web-based. The concept revolves around informal learning and a no-geeks-required user interface that allows maximum creativity and flexibility with minimum structure/restrictions.

He showed me an online demo of the work-in-progress and I liked what I saw. The more we talked about this the more it struck me how all of this technology and all of these web/informal learning opportunities totally get around the Blackboard patented "inventions." I need to think about this some more but I am definitely going to blog about it more and hope to get some input from others about this concept.

So this guy in Asia is reading my blog written in Minnesota and two minutes later we're talking for free with microphones hooked up to our computers. The world is definitely getting smaller (flatter?).

Sunday, August 13, 2006

New Desire2Learn Client

The Sleuth from Duluth. In the audio interview with John Baker (see post below this) , he said I should use my "sleuthing abilities" to find which Big Twelve school had just signed on with Desire2Learn. Armed with my sleuthing toolkit (Google), I found that Oklahome State University (OSU) has announced signing a contract with D2L after they beat out Angel, WebCT, and Blackboard (See here, scroll down a little) in the RFP battle.

Interestingly, the two finalists were D2L and Angel. Both Blackboard and WebCT were invited to give vendor demonstrations to the task force (did the same people show up twice?), but neither made it to the finalist stage even though both of these were (and still are) already in use at OSU. Another example of BlackCT not being able to compete effectively against more agile competitors, which is why they want to litigate them into oblivion.

In case the post linked to above goes away, I'll quote the operative paragraph here: "The Course Management System Task Force has decided that Desire2Learn will be the cms to replace both Blackboard and WebCT. The change to D2L is scheduled for January 2007. Both the software and new servers are to be obtained by July 2006. Many learning sessions are being planned for faculty and staff throughout the remaining part of the summer and all through the fall. For the fall term, 2006, both WebCT and Blackboard will be used as normal. For more details on the working of the task force, check here." from

Soon the students and faculty at both OU and OSU will be using D2L, unless the lawyers muck it up for them (and us).
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Interview with John Baker

Sorry, this took several days longer to post due to technical problems on my end.

I sat down with John Baker, CEO of Desire2Learn (see zoominfo bio), late Tuesday night at the MERLOT Conference to talk about the Blackboard suit as well as a few other things about D2L such as their recent growth and even pandemic planning. (Photo courtesy of Al Essa under Creative Commons license.)

The interview was recorded and edited with Audacity, but I uploaded the final cut into Odeo so that there would be a nice player embedded into the blog post. I'm still having a problem finding a nice way to get an audio player into a Blogger post.

powered by ODEO

0.00 Introduction and quick background
1:30 Support from competitors (eCollege press release)
3:58 Al Essa's comments about copyright vs. patent (Part 1)
5:36 Blackboard's patent filing in Canada (patent application)
6:40 Anti-trust comments/questions about BlackCT
10:50 Quotes from Blackboard (BB Patent page)
14:25 How does a 2000 patent relate to recent D2L developments (LOR, LiveRoom, etc)?
16:35 Potential for D2L benefits from Blackboard's attack
18:30 Pandemic planning
21:10 D2L Growth during past 2-3 years
24:05 Feedback on version 8 from clients using it

As you can imagine, on many topics he was only comfortable saying a lttle bit. I had no expectations for John to give away any trade secrets or compromise their legal positioning in any way. With that in mind, I hope you find something in there worth listening to.

Full disclosure: My college (LSC) uses D2L. I am the FY07 Chair of MinnesotaOnline which also uses D2L. I chaired the committee in 2002-2003 that made the recommendation to adopt D2L throughout MnSCU. I consider John Baker to be a friend and have known him for over three years now.

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Friday, August 11, 2006

Patent Overhaul

Recently the Senate proposed sweeping changes to the systems and procedures for the U.S. Patent Office. The Patent Reform Act of 2005 (not 2006, sorry, my bad) has been two years in the making. Parts of it sound very good, but other parts make you shake your head (side-to-side, not up-and-down).

This is still a long way from becoming law, but let's speculate about some of the aspects and how they would have affected BlackCT if they were already in place.

1. It would provide for a "postgrant opposition" system where those of us on the outside could bitch about the validity of the patent in front of a patent board without going to court and incurring enormous legal fees. This would be allowed for 12 months (9 months says the House) as a petition for cancellation of a newly granted patent. Apparently during this time the opposition would have a chance to provide evidence to the USPTO that they didn't bother to uncover themselves before granting the patent. In the Blackboard case, that would mean that all of the evidence gathered about prior art and different architectures, and all that might actually make a difference in getting the patent rescinded.

2. Patent plaintiffs would no longer be allowed to "forum shop" for those uninformed or weak-patent-friendly judges. In the Blackboard case, that would mean that they wouldn't be able to file in the friendly district in Texas that otherwise has no bearing on this suit.

3. Damages would be restricted only to those items in the patent that are clearly infringed upon rather than the entire value of the patented item. In the Blackboard case, what that would mean is unclear to me since I can't see the basis for the infringement in the first place.

4. Quoting from the CNET article, "Such a system, some argue, has contributed to the rise of "patent trolls"--that is, companies that exist primarily to make money from patent litigation and are using the system to force lucrative settlements." In the Blackboard case, that means that the troll would probably have never filed suit in the first place.

5. The Coalition for Patent Fairness supports this legislation while the Professional Inventors Alliance opposes it. The Coalition includes companies like Apple, Dell, HP, the Business Software Alliance, and others. The Professional Inventors Alliance seems to keep it's membership pretty secret. In the Blackboard case, their actions tell me that Blackboard would not like this new legislation to become law and that they are more likely to belong to the Inventors Alliance rather than the Coalition for Patent Fairness.

6. Now for the troubling part of the proposal. The standard for awarding patents would be based on the first to "file" for the patent. Forget (as Blackboard has) who invented it, forget who put in the R&D, forget who deserves it...apparently we are rewarding the quick over the righteous. It's hard to believe that they would actually have a provision that just allows the first filing to patent something unless they can also provide some evidence that it is their invention in the first place. In the Blackboard case, they would love this provision since that appears to be what they have already done. They didn't invent online test questions and discussion boards in an LMS, but they have a patent now that it makes it look like they did.

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Thursday, August 10, 2006

Blackboard 2.0

I attended a session at MERLOT this morning about the Blackboard Beyond Initiative (BBI). A former WebCT employee was the presenter. She started the presentation with a slide saying the "The Tipping Point is Happening - Web 2.0" There are three main parts of this according to the BBI: (1) Rich User Experiences, (2) Architecture of Participation (better when more people are participating), and (3) Software as a Service.

Sidebar: I just finished reading the Tipping Point about an hour before the session this morning. Interesting timing. I guarantee you that when I read Gladwell's book I never once thought of Blackboard as being part of a tipping point. I'll blog about the book later.

BBI wants to help build relationships through social networks, using as examples Linkedin and MySpace. They want to enable the sharing of resources through social bookmarking, using as an example. They want to provide tools for creating content such as blogs & wikis.

Their mantra is that E-learning 2.0 is about Informal Learning (also here and Jay Cross) and dealing with the unexpected. However, an LMS is formal and intentional.

They draw these contrasts from E-Learning 1.0 to 2.0:
* Instructor productivity to student centered learning
* From courses to social networking
* Change focus from inputs to outcomes management
* Move from education segments to lifelong learning
* From platform adoption to extending the platform (customizing for different purposes)

NOTE: in a classic Freudian slip, the presenter actually said "Investor" productivity rather than instructor productivity before correcting herself. That was the session highlight for me.

Blackboard 2.0 (combo of BlackCT) now has about 3,650 subsrcibers (institutions), with about 1,000 developers of extensions to the platform (many not BB employees), and approximately 15 million users.

BBI - Five web services (initially) with a goal of connecting institutions, faculty, and students across campuses and disciplines. This would be a multi-year effort developed by Blackboard but shaped and run by the community.

The Five Services:
1. Student Centered Learning (envisioned as enhanced student research tools)
2. Social Networking (possibly expanding upon ;)
3. Outcomes Management (mentioned something about Collaborative Benchmarking and Analysis)
4. Lifelong learning (offering E-portfolios for life)
5. Extending the platform (Learning Objects Catalogue)

Other possibilities include: (1) Dedicated best practices site, (2) Catalog of distance learning courses, (3) Single sign-on between institutions, (4) Degree verification online.

Expected to take several years and current thinking is to rollout in phases:
Phase 1 (Foundation): learning object catalog, student research, social networking
Phase 2 (Expansion): benchmarking
Phase 3 (Transformation): e-portfolios for life

Here's a nice corporate learning phrase for you: "Content + Community = Educational Value" (gag)

Other ideas being tested: (1) Social bookmarking for the disciplines, (2) BB open courseware, (3) Test bank collaborative, (4) Take-a-peek course registry, (5) E-learning benchmarking, (6) Student research tools, (7) Teach-ipedia.

So here's my take on all of this:
All this stuff already exists in multiple forms, so expect them to be filing patents on this stuff any day now, unless they already have (couldn't stop myself). Why would this be a good thing for academia? Why do we want a vendor creating stuff like this where they control it, where they put up barriers to entry? This is totally contrary to the whole concept of Web 2.0 philosophy of no or low barriers to entry. Blackboard 2.0 will have very large barriers such as enormous licensing fees to join the community. University and corporate control over social networking means that the social network will die from neglect. I seriously doubt that students will flock to social networking inside the BB system. BB is a course management tool and not an authoring tool...which it would need to be to be successful in a web 2.0 concept. Finally, I find it really telling that Blackboard is talking about creating things that already exist, and that it will take them 3-5 years to do it.

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Sakai Session

MERLOT session presented by Unicon, a Sakai Commercial Affiliate. This was the second of two presenters for a 60 minute session. He only had 15 minutes after the first one just couldn't stop herself. Unicon is of the opinion that the vendors dealing with the higher education market are getting too much power over us .... and I totally agree.

Unicon is an open source support provider. In other words, they will host your Sakai installation and provide technical support. They say that you get the benefits of open source software as well as the benefits associated with vended applications. The result is lower risk and more predictable costs. He talked about four potential steps down the path to using Sakai:
1. Test drive Sakai
2. Pilot Sakai in an ASP environment
3. Private-labeled hosted instance of Sakai for institutions
4. Deploy local instances of Sakai
I'm hoping to find the time to take a free test drive of Sakai at Academus Open Campus. The brief look we got at the session looked pretty clean and user-friendly, although we were looking at a student view so I don't know (yet) how user friendly it is for instructors.

He says that adopting Sakai is more of a strategic opportunity to position yourself for the future, but the vendor-based products do have more bells and whistles. In other words, don't expect it to be all things to all people; which I would also say is true of the vended products as well. I'll post more after a test drive. Don't hold your breath waiting, but sometimes I surprise even myself by getting things done.
Photo courtesy of pfmeurer (Creative Commons)
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Tuesday, August 08, 2006

Teachable Moment

I am an eager and willing student. I want to learn. I am totally serious.

I have been reviewing Blackboard's current patent application in Canada. It was apparently filed for on August 13, 2004, several years after they filed for the patent in the U.S. Here is the 4 page complaint against D2L and the 59 page patent granted in the U.S.

In the Canadian application, the following people are listed as inventors:

  • OERTER, LARA (United States)
  • FINNEFROCK, JESSICA (United States)
  • CHI, TIMOTHY ROTAU (United States)
  • CHASEN, MICHAEL LEWIS (United States)
  • EVERHART, DEBORAH (United States)
  • CANE, DANIEL (United States)

I'm sure that they are all upstanding and very fine people. So, good people of the Blackboard invention team, please educate me. WHAT EXACTLY DID EACH OF YOU INVENT? This is NOT a rhetorical question, I would really like an answer.

Maybe even more important to the current litigation, here is the list of inventors on the June 2000 patent filing in the U.S. by Blackboard:

  • ALCORN, ROBERT (United States)
  • CANE, DANIEL (United States)
  • CHASEN, MICHAEL LEWIS (United States)
  • CHI, TIMOTHY ROTAU (United States)
  • GILFUS, STEPHEN (United States)
  • PERIAN, SCOTT (United States)
  • PITINSKY, MATTHEW (United States)

Notice the lack of gender balance back in 2000, my how they advanced as a company. So, my question to all of you great inventors of things that already existed prior to the existence of Blackboard, can you please educate me? Please tell me exactly what you invented and in particular what you invented that was subsequently stolen from you by Desire2Learn?

Good luck with that!! - Invent: To produce or contrive (something previously unknown) by the use of ingenuity or imagination. - Invention: A new device, method, or process developed from study and experimentation.

Interestingly: the second definition of invent is "To make up; fabricate," and the third definition of invention is: "A mental fabrication, especially a falsehood." Apparently, those are the definitions that the U.S. Patent Office is working off of.

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Sunday, August 06, 2006

Coming Soon

Within the next few days I hope to be posting an audio interview between myself and John Baker, CEO of DesireLearn. I certainly don't expect him to expose any sensitive legal stuff, but I do hope to get some of his thoughts about the lawsuit and about how this will affect the future of D2L.

Quoting from his email reply: "I would be pleased to do an audio interview with you ... thanks again for your invitation to participate on Desire2Blog." I've known John for at least three years now and expect that he will provide a good listen on this interview. I'll be at the MERLOT Conference all week but hope to catch up with him via Skype or cell phone within the first half of this week. Stay tuned.

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Desire2Learn Patent-Info Blog

D2L has started using it's new blog tool as a way of informing the D2L community about the Blackboard lawsuit. Find the Desire2Learn Patent-Info Blog here. As D2L CEO JohnBaker shared with me in an email, "It is an external site using our blog tool within the community and allows you to subscribe to an RSS feed but we turned off comments. It certainly is not a fancy blog (remember it’s our 1.0 edition as you blogged), but it does allow you to see public documents that have not hit other blogs yet. We may also download some other blogging tools in the future."

They are asking for examples of Prior Art, which would help prove that the Blackboard patent is unwarranted since they were trying to patent code that already existed prior to the filing of the patent. There is also a growing Wikipedia site on prior art related to this lawsuit and the history of virtual learning environments.

Some of the information currently on the blog is legalese and won't be decipherable by most of us mere mortals., which appears to be the local newspaper in the Kitchener, Ontario (D2L) printed an article about the lawsuit that contains dome info I haven't seen elsewhere. Here is a PDF of part of the story in the actual paper, and here is the web version (not sure that the URL will hold up over time).

A couple of quotes from the article: "We thought it was important to not mince words and to file the suit and then engage in a discussion," Small (Blackboard's legal counsel) said.

"Blackboard has offered Desire2Learn the opportunity to discuss buying a licence to use its technology, although the companies are not in negotiations at the moment, Small said."

And finally, this nice tidbit: "Blackboard filed the lawsuit in Lufkin, Texas, in a judicial district known for processing patent lawsuits quickly (huh? six years?) and for juries friendly to patent owners (as well as unworthy patent wannabes)." (parentheses mine)

Finally, Michael Feldstein has posted his explanation of the what the 44 items in the patent really mean, in words that any educator can understand (no lawyers needed). He is not a lawyer, he doesn't play one on TV, but he is a resepcted e-learning professional. Here is his bio at his blog titled: e-Literate.
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Tuesday, August 01, 2006


Earlier I said I was not a hater. Oops, turns out that I HATE Blackboard.
From some very smart people:

Jay Cross:
"When I was a poker player in college days, the only table I refused to join was one where a player did not understand the rules. One guy could ruin a game for everyone by doing things so stupid that no one expected them. Which brings me to the U.S. Patent Office. This morning, Harold Jarche gave me the news that Blackboard has won a patent for the learning management system and sued a major competitor. The breadth of the patent is staggering.

By the way, I'm filing a patent on learning. It's a process by which the brain of a human being connects neural pathways in response to outside stimuli. The patent includes, ipso facto, hearing, sight, smell, taste, talking and feeling. If you don't cease learning immediately, you will hear from my attorney, ab abusu ad usum non valet consequentia, ab irato, et audentes fortuna iuvat."

Stephen Downes:
"The person who has cut into line ahead of you may appear to have gained something at your expense. My my belief is that a life led thusly is not one that profits. It is a life led solitary and alone. The essence of living in a community is to respect the interests, rights and desires of the other members. Those who disregard that essence soon find themselves excluded from the community, and from the benefits to be derived from the community."

"This applies to people, it applies to corporations, and it applies to life. Blackboard's action tells us more about what sort of company Blackboard has become than anything else. Blackboard has turned its back on those who have built it up from scratch. It has embraced the corporate world and the corporate ethos. It's a sad and disgraceful day for learning."

Wesley Fryer:
Is it possible for a company to patent “online learning” and then sue other companies in the online learning business? I wouldn’t think so, but apparently that is what Blackboard is doing in a recent lawsuit against Desire2Learn.

Crazy. Were the people in the US Patent Office really thinking clearly when they have this supposed “patent” to Blackboard? Will this have negative implications for Moodle in the US? Let’s hope not."

Stephen Downes (again):
"Now, the Blackboard patent was filed June 30, 2000. Here it is. Read both and judge for yourself. But let me say this: what Blackboard claims to have invented in 2000 is almost an exact clone of what I described in 1997 and published in 1999. Now Blackboard may be suing a company today - a Canadian company, naturally. But my response to Blackboard is this: where do you get off taking my invention, which I shared freely with the rest of the world, in order to advance learning, and claiming it as your own? Is this the model of learning to which you subscribe, to use the legal system to deny learning to people who cannot afford it?"


Here's the filing of the suit, dated July 26. Deep pockets versus shallow pockets. Desire2WakeUpFromABadDream

"Blackboard demands a trial by jury on all issues so triable." Did they mean "terrible?"

Here's a story with a couple of other interesting links.


Unbelievable. The U.S. Government continues to amaze me by taking stupidity to new heights. This time it's the patent office who takes a turn at making my head spin. BlackCT (Blackboard, if you must) was awarded Patent# 6,988,138 for "Internet-based education support system and methods."

The Abstract says: "
A system and methods for implementing education online by providing institutions with the means for allowing the creation of courses to be taken by students online, the courses including assignments, announcements, course materials, chat and whiteboard facilities, and the like, all of which are available to the students over a network such as the Internet. Various levels of functionality are provided through a three-tiered licensing program that suits the needs of the institution offering the program. In addition, an open platform system is provided such that anyone with access to the Internet can create, manage, and offer a course to anyone else with access to the Internet without the need for an affiliation with an institution, thus enabling the virtual classroom to extend worldwide."

The patent then goes into painstaking detail describing each nook and cranny of the BlackCT system. Basically, the gov't has just handed them a monopoly on learning management systems, or so it would appear. Maybe there will be some room for legal wrangling for differentiated products, but to my semi-trained legal eye, the patent is pretty damn broad.

Blackboard Patent FAQ page.

So Blackboard apparently has a Desire2Monopolize the LMS/IMS/CMS field and a Desire2Squash Desire2Learn and all the other competitors out there. No surprise that they want to do it, but I'm totally suprised that the good-old U.S. of A. thinks it's a good idea.