My former employer, Desire2Learn, has lost the patent suit that Blackboard filed against them. Here’s a little bit of background on the patent suit, and this is the latest development in the case.
While the suit was ongoing, D2L employees (myself included) were forbidden to discuss the suit with anybody outside of the company. Even talking about it in the office was discouraged, and we were told to carry on with “business as usual”. Now that I no longer work there, I can give my opinion.
Said opinion is this: software patents suck. Badly. And very much so.
A hundred years ago, patents made some sense. The goal of patents was to rouse the inventive spirit so that inventers could have exclusive rights to their newly realized concoctions and contraptions like Velcro, quartz clocks or incandescent light bulbs. The thing about inventions such as the ones I just mentioned is that they are very specific and concrete. For example, Velcro consists of a series of plastic hooks and small fuzzy plastic loops and when applied to each other, adheres. Its form defines itself.
Software is drastically different, so let’s first establish what it actually is. By definition, software is a collection of instructions that computers will execute to perform a given task or action. This software can be anything from a web browser and spreadsheet application, to a video game or your car’s diagnostic utilities. Yet if we take a step back for a moment, it’s safe to say that process of developing software truly involves translating human ideas and concepts into a manner that a computer will understand with the intention of being used, in turn, by humans. I’ve said it before and I’ll say it again – programming is hard 🙂 The point I’m trying to make, though, is that primary “inventions” in software are not anything concrete. Instead, software contraptions and concoctions are actually ideas and concepts. Can you patent a thought or concept? According to software patents, sadly, it is.
The suit against Desire2Learn basically came down to that sort of battle over concepts and ideas, and so Blackboard paraded their crazy patents that they miraculously invented in a court down in Lufkin, Texas that is known for processing patent suits quickly and favouring plaintiffs. Would you like to know a sample of Blackboard’s life-altering inventions? Please have a seat because you will surely be blown away by this, and I don’t wish to be held responsible for any bruises or concussions sustained as a result of learning this astounding information. Blackboard allegedly invented the super fantastic amazing concept of…a single person having multiple roles in a Learning Environment System, such that a person could have privileges of a Teacher’s Assistant in one course and those of a student in another course. Wow! A user having multiple roles – what a concept!
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I don’t think anybody has ever come up with an idea such as that, except for maybe early multiuser operating systems like UNIX, Microsoft’s Active Directory, Web-based forum software, majority of Web-based Content Management Systems, Software Configuration Management systems, IT Software Management systems, Customer Relationship Management applications, Facebook groups, Massively Multiplayer Online Role-Playing games and thousands of other software applications. Blackboard truly are blazing trails by using a well-entrenched concept and extending it to the context of an LMS. Bravo!
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Much of the technology industry, and I do mean that in the broadest sense (computer/networking hardware and software, the Internet, gaming consoles, embedded systems in cars/medical equipment/microwave ovens/etc), would not be where it is today without the ability to build and improve upon existing ideas in quick and efficient ways. Software patents stifle innovation, requiring developers and architects to constantly to engineer solutions that don’t step on the toes of lame patents, which are of course, just concepts and ideas. Something to keep in mind is that Blackboard is the market leader in the field of Learning Management System and Desire2Learn is their primary (and much smaller) competitor. Blackboard spent the last couple of years purchasing competitors and filing patents, while Desire2Learn chipped away at their market share. Software patents introduce a poisonous mentality into our profession; don’t innovate, litigate.