The center's executive director Eben Moglen asserts that a patent granted to Blackboard on July 26 covered "obvious" software functionality that was pre-existing in three open-source projects that he represents: ATutor, Moodle, and Sakai. Moglen on Nov. 17 asked the U.S. Patent and Trademark Office to re-examine its grant of Blackboard's 44 claims in the patent.
Moglen presented documentation of the pre-existing software functionality on behalf of the three open-source suppliers, which say they already had included in their programs the online education functions that Blackboard said was unique to its software. Blackboard's patent 6988138, "Internet Based Education Support System and Methods," differentiates between the roles of teacher and student in online learning. Moglen said the patent shouldn't have been granted. (Blackboard's announcement of the patent can be read here.)
"There is no room for a monopoly on any part of the educational process," said Moglen in a prepared statement at the center's Web site.
Blackboard filed a suit against a competitor, Desire2Learn, shortly after receiving the patent. The open-source suppliers trying to overturn Blackboard's patent fear they might be Blackboard's next targets. They said they had documented proof of prior art, or the existence of the software functionality that Blackboard claims as unique.
"We are deeply concerned that Blackboard's broad patent will stifle innovation in our community," says Joseph Hardin, chairman of the Sakai Foundation, a non-profit group that coordinates activity around Sakai educational software.
A patent case between two competing automobile brake suppliers, KSR International and Teleflex, is being heard by the Supreme Court this month in its first review of Federal Circuit court rulings that patent challenges must document the obviousness of patents that are wrongfully issued. The case has been joined by the Electronic Frontier Foundation, which plans to argue that the Circuit courts must drop the "obviousness" requirement.
Patents are meant to protect innovations that represent breakthroughs that would not be easily duplicated in the known state of the art, not inventions that "a person of ordinary skill in the field could consider obvious," says Corynne McSherry, an Electronic Frontier Foundation attorney (www.eff.org). The EFF recommends that the courts return to a stricter standard based on the 1966 decision in Graham v. John Deere as to what constitutes a patentable invention.