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Opinion
Keep Your Own Counsel on the Blackboard Controversy
9/12/2006
By Michael Feldstein, SUNY Learning Network (NY)
As you may know, Blackboard Inc. was recently granted a patent on aspects of Learning Management Systems and filed an infringement lawsuit against competitor Desire2Learn.
There are a lot of claims and counter-claims flying back and forth about what these developments may or may not mean for higher education and online learning. (Full disclosure: I am opposed to Blackboard’s litigation.) However, all sides agree that universities will benefit from educating themselves about the fundamentals of the issue. To that end, this article provides a series of questions that you can take to your college’s legal counsel in order to better understand how patents on educational software in general and Blackboard’s patent in particular may affect your institution.
Michael Feldstein, SUNY Learning Network (NY)
Your Current Risk Exposure
Your first goal should be to determine which systems within your university may be at risk of infringing on Blackboard’s patents and what the consequences of infringement might be. Keep in mind that the patent could potentially cover software that you don’t necessarily think of as a Learning Management System (LMS). Also, be aware that individual schools, departments, or faculty members could be using software systems other than your officially supported LMS. With that in mind, here are some questions for your legal counsel:
- Can you give me a plain-English test that I can use to determine whether a given software system may infringe on Blackboard’s patent? (Since an understanding of the patent claims requires both technical and legal expertise, your counsel may find this document [interpretations by Michael Feldstein] to be a helpful starting point.)
- For each system that may infringe on the patent, who is potentially liable? The software manufacturer? The support vendor? The university?
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