Blackboard now owns WebCT and ANGEL. 2008 higher education CMS usage table adapted from the March 2009 ITC Distance Education Survey

This most recent acquisition is a surprising but not unpredictable indicator of Blackboard’s lust to dominate the higher ed CMS market. In 2006 the US Patent Office awarded Blackboard a broad and hotly contested patent on learning management system features, which Blackboard immediately used to sue its next largest commercial rival, Desire2Learn. And though Blackboard was successful in its legal actions, twice since then the US Patent Office has rejected the original 44 patent claims, first in March of 2008 and again in April of this year.

Blackboard, however, presses on, appealing the rejections, fighting with Desire2Learn in the courts, suing the US Patent Office, and even filing more patents (including one detailing a 3D learning environment, and a set of claims in Canada[!]) on which they can base new lawsuits against D2L.

As ITC noted in its March 2009 survey, ANGEL had gained considerable market share in the US, putting it in the #2 slot against Blackboard+WebCT. What once looked like good news for Angel has become a nightmare for an CMS consumer market in need of diverse and innovative choices, and a looming shadow for other CMS producers, as Blackboard continues to thwart and denigrate healthy competition in the field of e-learning. At this point I’m continuing to put my faith in Moodle, the popular open source CMS, and wondering if US antitrust law contradicts Blackboard’s aggressive behavior.

Blackboard filed the lawsuit on July 26, 2006 against competitor Desire2Learn based on intellectual property claims related to it’s Blackboard’s U.S. patent #6,988,138. Blackboard has argued that it had invested 100 million dollars in the development of the educational products protected under the patent. (NoEduPatents.com has made an explanation of Blackboard’s 44 patent claims.)

Backlash to the Blackboard patent by the open source and educational communities has been strong since news of the lawsuit first broke, and will likely continue through communities such as boycottblackboard.org. I personally did not expect Blackboard’s claims would be upheld when re-examined by the patent office, let alone that the lawsuit would be validated by the jury.

Because the patent claims are broad and impact so many common e-learning features, Blackboard’s legal victory is bound to be discouraging and troublesome to other commercial learning management system providers such as Angel Learning, eCollege, and Agilix. Blackboard has previously declared that it would not assert it’s U.S. patents against open source software development, e.g. Moodle and Sakai.

Does this apparent magnanimity bolster my favor for Blackboard? Certainly not; the position is superficial at best, and Blackboard knows it. Anyway, it’s beside the point: though I personally lean towards open source software for educational technology, I am a capitalist, and free market competition and consumer-driven innovation of services and products is important to me. Blackboard’s overblown patent claims are an affront to innovation and competition, taking advantage of systemic failures in U.S. Patent regulations.

And though some will dismiss this news based on the argument that even conceptually the LMS has inherent flaws (failure to keep up with current technologies, inauthentic, lack of learner ownership, creepy-tree-house, etc), I believe the LMS is still a valuable toolset for many. The LMS has has propelled e-learning into a new frontier by standardizing the basic communication and delivery features for an educational audience. The LMS’s ability to provide teachers an easy-to-use set of online educational tools in a one-stop-shopping experience is and will remain considerable for the next 5 years at least. (The unfortunate reality is that alternative networked education “systems” such as personal learning environments are still being thought out and developed–at the very least alternatives are probably not ready for widespread adoption and implementation by faculty members.)

Regardless of whether you’re pro-LMS or anti-LMS in general, I think the larger debate about software patents particularly when applied to education is an issue we in ed tech all have a stake in. At the ITC conference last week I picked up a witty t-shirt given to me by The rSmart Group that signifies the position of many:

Sources

• Desire2Learn’s Patent Lawsuit Blog
• Blackboard’s Patent Info Page
• Blackboard’s U.S. patent #6,988,138
• NoEduPatents’s Explanation of Blackboard’s 44 patent claims
• Groklaw: Reexamination of Blackboard Patent
• Wikipedia: Software Patent Debate
• BoycottBlackboard.org