EdTechTalk#64 – Software Patents in Higher Ed.


September 17, 2006

Download mp3 (1:18:55, 36.5MB)

It’s been the summer of patent nonsense. With Blackboard announcing their patent that covers much of VLW/LMS based online learning and then filing suit against Desire2Learn we saw another example of an ever increasing trend toward a monopoly of control over the Internet. We are lucky to have two of the internets finest edu patent watchdogs coming on the show tonight: Alfred Essa and Michael Feldstein.

We’ll start out by walking through the issues, from D2L’s recent response to the suit filed by blackboard, to a pre-refutation of the arguments that Blackboard will be presenting for their users starting tomorrow afternoon. Anyone who is interested, please feel free to come out with your questions and your comments. All points of view are welcome.

18:44:42 dave: hi al

18:44:48 alfredessa: hi dave

18:45:30 Tinus: that’s gonna be interresting

18:45:49 Tinus: changing skypecast’s

18:47:15 alfredessa: hi michael

18:48:06 Michael_Feldstein: Hi there.

18:48:18 Michael_Feldstein: How do we do the audio from here?

18:48:27 JL: https://skypecasts.skype.com/skypecasts/skypecast/detailed.html?id_talk=35946

18:48:29 dave: need you guys to skype ‘worldbridges’

18:48:35 dave: al and michael

18:48:52 Michael_Feldstein: working on it now

18:48:53 robmcd: i did say yes i am

18:49:02 robmcd: did u not hear me ?

18:49:45 robmcd: i am hearing u guys fine

18:50:46 JL: we hear you Michael

18:55:36 dave: hey seb

18:55:39 dave: and crafty

18:55:59 Seb: Hello all

18:56:04 crafty184: hello there…

18:56:09 Michael_Feldstein: Hey Seb

18:56:37 sharon_(eebee1): Greetings all from Montréal

18:56:47 dave: yay montreal?

18:57:11 sharon_(eebee1): grim week for Montréalers

18:57:15 dave: yay teddy rosevelt

18:57:23 dave: i think i spelled that wrong

18:57:45 Seb: Hi Michael! (From Sheffield. Where it is very late.)

18:58:31 roberttoronto: sorry had to log off, i was getting 2 feeds about 20 seconds apart

18:58:39 dave: yes. that happens.

18:58:49 roberttoronto: 1 from website 1 from new skype

18:59:25 JenniferW: hi everyone

18:59:35 crafty184: Hi Jen, this is Chris Craft

18:59:53 roberttoronto: neways.. i been to dozens of skypecast. i learned more in the 20 mins from your then all the other put togther

19:00:31 JenniferW: Hi Chris — I wondered if that was you

19:00:54 crafty184: I’m trying this out, first time I have actually logged in, usually I listen afterwards

19:01:46 AlexCQ: Hi Crafty

19:01:51 crafty184: Hello Alex

19:01:54 AlexCQ: first time for me too

19:02:24 AlexCQ: i’m logging in from England – late here, but interesting topic

19:02:36 JL: thanks for staying up

19:02:57 AlexCQ: sure thing

19:03:05 roberttoronto: who’s voice belongs to worldbridges ?

19:03:13 dave: jeff is talking right now

19:03:49 roberttoronto: ha

19:04:08 JenniferW: so true

19:04:11 JenniferW: 🙂

19:04:20 roberttoronto: they have computers in PEI ?

19:05:11 roberttoronto: 😉

19:05:15 dave: lol

19:05:17 sharon_(eebee1): Torontonians are notorious for believing they live in the centre of the universe

19:06:43 roberttoronto: torontonians do tend to look down at the test of canada. It’s called the CN tower syndrome

19:07:02 roberttoronto: i dont suggest u eat there BTW

19:07:38 Michael_Feldstein: Use the Cones of Silence

19:07:56 JohnPMayer: Al sounds ok in the skypecast

19:10:01 dave: http://mfeldstein.com/

19:10:15 Seb: Good evening John P Mayer!

19:10:18 dave: http://sln.suny.edu/index.html

19:10:54 JohnPMayer: Hi Seb

19:11:21 dave: wow that was a rookie mistake

19:11:30 dave: 😕

19:17:38 JohnPMayer: Great article on Bb patent at http://www.centralquestion.com/archives/2006/09/blackboard_fear_uncertainty_and_doubt.html

19:19:04 roberttoronto: patent is an invention?

19:19:15 JohnPMayer: yes

19:19:41 AlexCQ: oh hey, thanks John!

19:19:43 dave: someone get the VLE wikipedia thingy

19:19:53 dave: please

19:20:13 AlexCQ: I read some of Al’s stuff afterwards and realised I’d just scratched the surface

19:20:22 JL: http://en.wikipedia.org/wiki/Virtual_learning_environment

19:20:44 roberttoronto: do trademarks expire ?

19:21:16 JL: http://en.wikipedia.org/wiki/History_of_virtual_learning_environments

19:21:22 JohnPMayer: The patent-er is supposed to provide prior art to the patent office

19:21:26 Michael_Feldstein: yes, trademarks expire

19:22:16 JohnPMayer: trademarks don’t expire in the same way that copyrights and patents do.

19:22:29 roberttoronto: right i didnt think they did

19:22:57 JohnPMayer: You can keep a trademark for as long as you maintain it by staying in business.

19:23:01 roberttoronto: coca-cola is a trademark i think

19:23:11 Michael_Feldstein: Yes, but it expires when the business goes away.

19:23:18 Michael_Feldstein: Different, but still temporary.

19:23:25 JohnPMayer: Correct

19:23:26 roberttoronto: understood.. thanks

19:24:06 JohnPMayer: Expensive

19:24:42 JohnPMayer: IANAL as well

19:24:46 JenniferW: which is more expensive — fighting the patent or paying the fine they are expecting you to pay for violation???

19:25:12 JohnPMayer: that’s the rub

19:25:20 aessa: costs are asymmetrical

19:25:30 aessa: heavily in favor of plaintiff

19:25:38 roberttoronto: I have a trademark dispute with cdn gov, but not about someone else claiming it. gov says i didnt pay, but i did but have no record of i that i can provide. so i’m expected to pay again

19:26:07 JohnPMayer: simple – pay it

19:26:50 roberttoronto: yeah i will, and KEEP THE PROOF

19:27:01 roberttoronto: lesson learned

19:27:01 JohnPMayer: yup

19:28:11 seb: What is the likely timescale on the Bb/D2L case? i.e when will the court consider the D2L “Answer”.

19:28:15 JenniferW: So will it help D2L with the fact that OK State decided to go with them AFTER the patent issue started. http://www.learningbusiness.fi/portal/31/?id=13298

19:28:23 JohnPMayer: we don’t know what Bb is asking D2L to pay

19:28:43 JohnPMayer: No

19:29:11 AlexCQ: do we know that Bb has asked for a particular sum?

19:29:29 JohnPMayer: Right on Mike – winning a patent litigation sort of validates the patent in the marketplace

19:29:31 JenniferW: is it a continual tax??? or a one time payment. Sorry, I am unclear of exactly what the “punishment” is

19:30:00 JohnPMayer: Punishment is what the court applies.

19:30:08 JohnPMayer: Then D2L has to pay the license fee

19:30:16 dave: http://caliopolis.classcaster.org/

19:30:21 JenniferW: I think royalty fee is a good explanation — thank you

19:30:27 dave: hence the legal knowledge

19:30:31 dave: 🙂

19:30:41 JohnPMayer: Still not a lawyer though.

19:30:44 JenniferW: but is it a repetitive fee

19:31:03 roberttoronto: JognPM U should have been a lawyer

19:31:04 JohnPMayer: Bb could license their patent for a one-time fee or for a per-use basis – up to them

19:31:29 roberttoronto: err JOHN i mean

19:31:33 JenniferW: wow — truly??

19:31:36 JenniferW: it is up to them???

19:31:42 JohnPMayer: Yup

19:32:04 JenniferW: grins — that is one trial I won

19:32:10 JenniferW: won’t be asked to be a juror on

19:32:16 JohnPMayer: TX federal district has most experience in fast patent trials.

19:34:42 JenniferW: so were they ignorant with the power of their program — and didn’t expect payment for it???

19:35:01 Caroline_Meeks: The only theory about D2L’s behavior is they are altruistic and taking a moral stand?

19:35:19 JohnPMayer: D2L is fighting for its life

19:35:42 dave: and getting LOTS of great press

19:35:45 JenniferW: you wouldn’t know from their website though — they are still plugging away very positively

19:36:09 JohnPMayer: Yes, they are accruing good will for this (and Bb losing it)

19:36:16 AlexCQ: yeah, i guess it has raised D2L’s profile

19:36:31 Michael_Feldstein: And very pissed off

19:36:38 Michael_Feldstein: Some of this is emotional

19:36:52 Michael_Feldstein: But some of it is a calculation that they can knock Bb out of a dominant position

19:37:45 AlexCQ: could it be positive too for D2L if they licenced the patent and killed off OSS alternatives

19:37:52 JohnPMayer: Yup

19:38:25 JohnPMayer: Worst case scenario is a deal between D2L and Bb

19:38:26 AlexCQ: so this might generate a lot of fire and heat and then get settled

19:38:34 AlexCQ: gotcha

19:39:04 JohnPMayer: This is what is so confusing. Any deal has to be cheaper than patent litigation.

19:39:12 JohnPMayer: …for both parties.

19:39:38 JohnPMayer: I think Bb wants to validate the patent and then get bought by someone- the patent increases their sale value.

19:39:54 dave: mmm…

19:40:04 JasonR: What can students do about Blackboard?

19:40:31 JohnPMayer: Moodle/Sakai, etc are going to eat Bb’s lunch (already are in some cases). Gonna happen, so I think they want to get out of the biz in 5 years.

19:40:50 JasonR: This came up on the Second Life Educators Discussion list. The advice was to keep up the discussion and make sure classmates know that there is an issue.

19:40:56 JL: http://www.dotrust.org/

19:40:56 JohnPMayer: Students can educate their institutions.

19:41:33 JohnPMayer: Bb costs institutions serious $$ – OSS alternatives are less $$ – therefore more $$ for education for students.

19:41:59 JenniferW: I can think of 4 private colleges within 30 miles of me that use Blackboard and their student’s DON”T question its use at all. I don’t think they are ignorant — I think they just don’t know there are alternatives or options.

19:42:46 JohnPMayer: Bb is tightly tied with admin computing systems. Hard to dislodge once installed.

19:43:46 JohnPMayer: http://pubpat.org/

19:44:16 Michael_Feldstein: http://www.digitalpromise.org/

19:44:52 Michael_Feldstein: http://dotank.nyls.edu/communitypatent/index.php

19:47:07 JohnPMayer: Many patents are defensive…I won’t sue you if you won’t sue me.

19:47:59 JohnPMayer: Patent legislation is controlled by pharmacy companies mostly.

19:48:27 dave: http://www.blackboard.com/patent/FAQ2

19:48:33 JL: What’s going on with patent reform? Will this lousy system continue indefinitely?

19:48:49 AlexCQ: I run a small software business – patents are a much bigger threat to my business than protection. I’d like to see more copyright protection, and less patent protections.

19:49:04 JohnPMayer: Very tough to change it .. IMHO.

19:51:07 JL: http://www.blackboard.com/company/patentFAQ.htm

19:51:32 JohnPMayer: My prediction is that Bb will never update that FAQ again – D2L already used it against them in their response.

19:51:55 dave: lol

19:52:00 dave: i never noticed

19:52:21 JohnPMayer: Bb is stuck – they can’t talk about it without it becoming part of the case against D2L…

19:52:28 JohnPMayer: Look what happened to SCO!

19:52:53 dave: i think i could have done alot of things withtheir $100 million

19:53:54 AlexCQ: hmmm. how’s SCO getting on these days

19:54:01 AlexCQ: http://finance.yahoo.com/q/bc?s=SCO&t=5y&l=on&z=m&q=l&c=

19:55:04 seb: Still keen to get a sense of the timescale for the court case.

19:55:36 JL: will make sure we get that in

19:55:36 JohnPMayer: depends on so many things. Minimum is 6 months, max is years.

19:56:25 seb: So now that D2L has its “answer” filed, things go quiet?

19:57:13 AlexCQ: does anyone know if any really big companies might be infringing on this patent – Microsoft / Adobe etc

19:57:17 JohnPMayer: Not exactly sure what happens next – pre-discovery motions, discovery, depositions, expert witnesses, more motions ….

19:57:44 JohnPMayer: Doesn’t matter if others ‘are’ infringing – only matters if Bb sues them.

19:58:19 seb: It would be good to get some clarity on the nexet steps.

19:58:53 JasonR: Just gonna mentione that

19:59:08 JenniferW: LOL — USC doesn’t know what it is talking about — it is being PC cuz they don’t understand 🙂

19:59:38 JasonR: http://www.boingboing.net/2006/08/24/uscs_bizarre_nonlega.html

19:59:40 dave: i just got accepted to the blackboard webinar for tomorrow morning

19:59:43 dave: anyone else coming?

20:00:12 JenniferW: did he hear your complaint of no invite???

20:00:12 JohnPMayer: Pretty sure next step is a something called a Markman Hearing (see http://biojudiciary.org/subpage1.asp?tid=163)

20:00:55 seb: You are right. That’s what Matt Small told us when we had the ALT teleconference. There is a URL in the ALT notes of the teleconf.

20:00:56 dave: ha

20:01:00 dave: maybe

20:01:07 dave: mangle mange

20:01:08 dave: mangle

20:01:09 JohnPMayer: Sorry for this (long)

20:01:16 JohnPMayer: Not exactly sure what happens next – pre-discovery motions, discovery, depositions, expert witnesses, more motions ….

20:01:25 JohnPMayer: Courts typically conduct a pre-trial “Markman” hearing where the trial judge hears evidence and then construes, as a matter of law, the asserted patent claims. A narrow claim interpretation may often favor accused infringers because it may allow them to escape literal infringement. Conversely, the more broadly a claim is construed, the more likely the accused device will fall within the claim’s limitations. An overly broad claim interpretation, however, can actually create problems for the patentee by causing the patent claim to be invalid in light of the prior art

20:02:23 JasonR: Students in my backyard got into trouble for plagarism. Teachers used Turnitin http://www.tampabays10.com/news/local/afternoon/article.aspx?storyid=39472

20:02:35 JasonR: Yet Turnitin might be violating student’s rights, no? http://chronicle.com/free/v48/i36/36a03701.htm

20:02:53 JenniferW: wrap up

20:02:56 roberttoronto: interesting point

20:03:01 seb: From the notes, which D2L excerpts in its “ANSwere” : The patent will be tested in front of a jury, after a pre-trial “Markman Hearing” during which the parties summarise their stance on the case to the judge, who then sets out the scope of the case and the issues to be tested. Until this stage in proceedings it is impossible for either side to predict what the actual shape of the trial will be, and which specific issues will in fact be tested.

20:03:48 JohnPMayer: Yeah, working on it.

20:03:56 roberttoronto: skype is not letting me ask for mic

20:05:04 dave: who’s next?

20:05:19 roberttoronto: SERVICES: (1) Custom design of web based business applications over the internet using a client’s web site as a portal which allows both unrestricted and restricted secure access to data.

20:06:01 JohnPMayer: Get a lawyer – seriously.

20:08:20 JenniferW: and there also not to be monopolies — correct

20:08:31 roberttoronto: can i make 1 follow up point ?

20:08:41 JL: yes…standby

20:08:46 dave: can you type it?

20:08:53 roberttoronto: ok

20:08:57 dave: your audio isa little choppy

20:09:06 JohnPMayer: Patents are mini-monopolies.

20:09:33 aessa: a patent by definition is a legal monopoly

20:09:39 aessa: it gives the patent owner exclusive

20:09:43 aessa: ownership for 20 years

20:10:11 roberttoronto: i read a while back that some companies are even tying to patent combination keystrokes to evoke functions.. example. ALT-CTL-DEL .. has anyone heard if this is still an issue ?

20:10:31 JenniferW: ohmigosh — how petty

20:10:46 AlexCQ: Robert, my guess is that the ambition is to create fear so that customers buy their software rather than use open source/other systems that don’t pay the Bb tax.

20:10:46 JohnPMayer: Bb is vulnerable most through its (1) shareholders and (2) customers.

20:10:47 JenniferW: like Paris Hilton trying to patent “that’s cool” —

20:11:01 JenniferW: ridiculous waste of time LOL InMyHumbleOpinion

20:11:52 roberttoronto: trump wanted to ccopyright your fired.. so i guess anything goes.. but it is a bit much.. where do we draw the line

20:13:05 seb: Jim Farmer’s piece (I think it is the one Al Essa mentioned) is here: http://fm.schmoller.net/2006/09/the_new_environ.html

20:13:51 JL: http://www.wipo.int/

20:14:01 JasonR: broadcast treaty

20:14:23 JasonR: http://www.eff.org/IP/WIPO/broadcasting_treaty/

20:14:50 JenniferW: do we know????

20:15:00 JohnPMayer: Don’t care-small potato issue.

20:15:01 JenniferW: I don’t know what my US government thinks

20:15:07 AlexCQ: I’m not on skype, but can someone voice a question for me – What would it take to invalidate this patent so it was no longer a threat to other companies / schools

20:15:24 JL: will do

20:15:29 JohnPMayer: That’s what D2L is doing by fighting the patent.

20:16:37 JenniferW: can I have a bit of clarification here — BB came first, created a product — didn’t protect it. D2L saw this good idea — and replicated it — and distributed it — and is now collecting $$. So now BB is upset?? Is that it in a nutshell??

20:16:51 JasonR: Does anyone here own a patent? Just curious. I don’t.

20:17:06 aessa: i don’t own a patent

20:17:57 JasonR: I get the impression patenting is just not something the common man deals with, so it does not appear on the election-year radar

20:18:08 JohnPMayer: that’s about right.

20:18:39 roberttoronto: Alex: i cant help but wonder how much of a hand microshaft has in protecting propriety code versus competing open source products.

20:19:08 roberttoronto: ooops microsoft

20:19:16 dave: now robert

20:19:19 dave: 🙂

20:19:31 JohnPMayer: …or that the patent is obvious.

20:20:18 JenniferW: sooo will stephen downes sue BB after they sue d2l — sorry 🙂

20:20:56 JohnPMayer: Stephen doesn’t have a patent to sue for infringement.

20:21:57 aessa: exactly

20:22:10 aessa: stephen doesn’t have the basis for a filing a lawsuit

20:22:17 JL: Jen, don’t think that assessment was quite right – I think a number of folks were working on something, BB applied for a patent first and now says you other folks have to give us money

20:22:34 JenniferW: it is a sorry state to think that we have to be worried about being creative and worry about sharing out ideas

20:22:55 JenniferW: JL — I was being a bit “tongue in cheek” sorry

20:23:27 JohnPMayer: The good thing is that we now know Bb’s true colors.

20:23:43 JL: ah

20:24:54 JohnPMayer: If Bb sued a large university system, they would get KILLEd in the press.

20:25:04 JohnPMayer: Even worse than now

20:25:20 JenniferW: so bottom line -_ BB forgot to protect its idea and now, in hindsight, it is trying to???

20:25:41 JohnPMayer: Nope. Bb originally applied for this patent 6 years ago.

20:25:48 JenniferW: ahhh okay

20:25:53 JohnPMayer: It took them this long to get it past the patent office.

20:25:58 roberttoronto: “First they ignore you, then they laugh at you, then they attack you, then you win.” Mahatma Gandhi

20:26:31 AlexCQ: 🙂

20:26:35 JohnPMayer: Almost all patent applications are refused on first submission.

20:26:52 JohnPMayer: You have to tough it out with the Patent Office.

20:28:06 JenniferW: the feeling of ownership — even in a patent — is a powerful emotion. I would be interested in hearing both sides in a debate

20:28:28 JohnPMayer: Bb’s battle with the patent office is documented here…http://community.desire2learn.com/d2l/lms/blog/view_userentry.d2l?ou=1796&ownerId=6961&entryId=24&ec=1&iu=1&sp=&gb=usr

20:28:44 JohnPMayer: Notice it was D2L that posted it.

20:29:19 JenniferW: will this be a jury trial — it would be interesting to see the “peers” chosen for BB 🙂

20:29:37 Michael_Feldstein: Yes, a jury trial.

20:29:55 JasonR: Has anyone ever written to their congress critter? I know there are websites that hold your hand with that kind of thing.

20:30:40 JohnPMayer: I don’t think that patent reform is the best approach for the ed-tech community.

20:30:44 JasonR: It might be an interesting webcast to talk about the steps necessary to effectively communicate with representatives

20:31:02 JenniferW: I write my congress people all the time. However, I don’t use the generc email response form — I have been told those dont’ get read

20:31:09 JohnPMayer: good job

20:31:23 JenniferW: very very informative thank you

20:31:40 roberttoronto: this has been a great session.. thank u all very much for allowing me to listen in 🙂

20:31:44 aessa: thank you for participating

20:32:01 dave: http://tatler.typepad.com/nose/ http://mfeldstein.com/

20:32:02 JasonR: I’ve heard that sending hand written letters are ineffective, they often get mangled in the post-anthrax screening process

20:32:03 AlexCQ: thanks muchly guys

20:32:13 JenniferW: no — you need to call and ask for a direct email

20:32:15 JohnPMayer: Keep up the fight, Al and Mike!!!

20:32:23 JenniferW: they will give you one if you are peristant

20:33:20 seb: Thanks all. Good night.

20:33:24 JenniferW: went quickly

20:34:48 roberttoronto: goodnight all

21:03:58 JL: http://del.icio.us/virtualbridges

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