Patent fight rattles academic computing

The dispute is part of a contentious area of the law concerning patents awarded not just on invented objects, but on ideas and processes. 

In theory, patents can be awarded on a whole range of ideas as long as they are "non-obvious" and the Patent Office sees no evidence they have been described before.  Patents have been awarded for everything from types of credit card offers to methods of teaching a golf swing.

Now, the issue is surfacing in the growing field of e-learning.

According to the Sloan Consortium, 2.3 million U.S. college students were taking at least one course entirely online in the fall of 2004 — a figure that is likely higher now and doesn't include "hybrid" classes with both online and in-person components.

Most of those students use so-called "Learning Management Systems," which provide the electronic backbone for online education.  For-profit and traditional universities are investing millions in these systems, hoping the upfront investment will pay off down the road with a more efficient teaching model.

About 90 percent of colleges use some kind of LMS, according to data from Eduventures, a Boston company that does research and consulting on online learning, and they are used in about 46 percent of classes.  Blackboard has about 60 percent of the market for those systems, followed by eCollege and Desire2Learn with about 20 percent each, according to Eduventures.

"A few years ago this was a place to just hang your syllabus, maybe post a couple of links," said Catherine Burdt, a senior analyst with Eduventures.  "Increasingly, we see these systems as the foundation of academic computing."

Blackboard's patent doesn't refer to any device or even specific software code.  Rather, it describes the basic framework of an LMS.  In short, Blackboard says what it invented isn't learning tools like drop boxes, but the idea of putting such tools together in one big, scalable system across a university.

"Our developers sat down and said 'college IT departments are having a lot of trouble managing all these disparate Web sites from each class.  How can we turn this into one computer program that manages all of the classes?'" Small said. "That was a leap."

Critics say it was a tiny hop at most.

Blackboard's claims are "incredibly obvious," said Feldstein.  The company's patent suggests "that they invented e-learning," said Alfred Essa, associate vice chancellor and CIO of the Minnesota state college and university system.

The academic IT community has taken its case to the blogosphere.  Over recent weeks, a sprawling Wikipedia entry has emerged tracking a history of virtual classrooms as far back as 1945 in an effort to demonstrate the idea was not Blackboard's.

Why are universities concerned?  Many use off-the-shelf systems sold by Blackboard already. But others use rival companies like Desire2Learn, or mix and match to meet their own needs.  Because universities are decentralized and have such varied systems, one size rarely fits all, says Feldstein.  Many borrow from open-source courseware programs with names like "Moodle" and "the Sakai Project."

The fear is that universities, afraid of being sued for patent infringement, would stop that mixing, matching and experimenting — and that innovation would suffer.  Feldstein notes most LMSs started out as university research projects _ including Blackboard itself, at Cornell.

Blackboard's Small denies the company is claiming to own the very idea of e-learning.  He says the company supports open source, and notes a Blackboard product called Building Blocks allows users to create their own systems off Blackboard's basic platform.  Blackboard, he says, is focussed on commercial providers and has no intention of going after universities — its customers, after all — in court to collect royalties.

"Blackboard is not a troll," he said, referring to the term for companies that establish a patent but don't use it except to exact royalties from others.  "We're not trying to put anyone out of business. We're not trying to hinder innovation. We're seeking a reasonable royalty."

Desire2Learn founder and CEO John Baker says his company will fight the patent hard.

"We hope that after we defend ourselves this will be good for everybody in the industry — clients, students, educators, everybody," he said.

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