As reported elsewhere, the USPTO has recently granted a re-examination of the 44 claims contained in patent No. 6,988,138 B1 held by Blackboard Inc. This patent is for an e-learning software that allows for a separation of students and teachers, and creates a forum for online coursework and discussion. The request for the re-examination came from the Software Freedom Law Center (SFLC) on behalf of several open source companies that also produce e-learning software. The main reason that the re-examination was granted appears to be the existance of prior art found by the SFLC that was not considered when the patent was granted. According to the re-exam order, there is a system called TopClass that predates the Blackboard patent which appears to do a lot of the same things as the Blackboard software. The order quoted one of the original examiners as stating that the patent was granted because “none of the prior art teach or suggest a course…based system for providing to…an educational community of users access to a plurality of online courses” which have separate, predetermined roles for each individual user. Next, the order describes TopClass as a “learning environment that distributes course materials” and “allows online communication between instructors and students.” If you read the exam order here (.pdf file), and compare the general functioning of the Blackboard software in their brochure here (.pdf file)……it seems that the USPTO was wise to look at TopClass as extremely relevant prior art. Perhaps in response to the re-examination, Blackboard has made a “pledge” that they will allow universities and colleges to utilize open source and home made e-learning software without asserting their patents. It seems currently that the consensus is that the “pledge” will not be enough to satisfy the proponents of the re-examination, because it does not forclose all of the possible legal avenues for Blackboard to enforce the patents at issue; invalidation of the patents still looks to be the only way the open source community will be satisfied.

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