EdTechTalk#64 - Software Patents in Higher Ed.

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September 17, 2006
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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=...
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_uncertai...
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

EdTechTalk64-2006-09-17.mp336.14 MB