Educational Patents, Open Access Journals, and Clashing Values

This posting has two goals — first, to introduce DLTJ readers to the notion of “Educational Patents” or “edupatents” and provide an update on events of this week. Second, to frame the sometimes contentious interaction between academic institutions and supporting businesses as one of “clashing values.” The former serves as a cautionary tale within the wider scope of the latter.

Educational Patents


Are you following the world of “edupatents” (broadly defined as patents that affect the educational markets)? This kicked into gear about this time last year with Blackboard‘s lawsuit [PDF] against Desire2Learn over alleged infringements by Desire2Learn of a Blackboard patent. Michael Feldstein posted a layman’s analysis of the lawsuit and concludes that many “Learning Management Systems have most or all of the features listed in the claims and therefore may infringe on the patent.” Those in the list are not only Desire2Learn and other commercial packages, but also the open source Sakai and Moodle projects. Al Essa has a graphical view of Blackboard’s patent claims, and it does seem that the patent covers a broad spectrum of educational technologies that we are starting to take for granted.

The end of last year was a very busy time in the world of edupatents. In early October 2006, the EDUCAUSE board issued a statement denouncing the lawsuit followed by events in December at the Sakai conference in Atlanta: Eben Moglen’s (of the Software Freedom Law Center) keynote speech on the dangers of edupatents [MP3] and a debate between Eben Moglen and Matthew Small (Blackboard’s chief council) on the merits of Blackboard’s case. (I highly recommend listening to both recordings.) All of this was followed by news earlier this year from the combined EDUCAUSE and Sakai boards of a negotiated non-aggression pact between Blackboard and the open source community.

Just this week the story got even more interesting. First, Desire2Learn reported on a major decision by the court in the Blackboard lawsuit: “Claim 1 is rendered invalid because of indefiniteness. Further, all dependent claims that rely on Claim 1 (in our case, Claims 2 through 35) are similarly invalid.” That leaves only Claims 36 through 44 in play. Second, Blackboard file a “preemptive” lawsuit against Turnitin (Internet-based plagiarism-detection service) that seeks to prevent Turnitin’s parent company iParadigms from suing Blackboard over potential claims that Blackboard may have violated iParadigms’ patents (a story from Chronicle of Higher Education [subscription required], Michael Feldstein’s analysis and iParadigms’ view).

How does this apply to academic libraries? In describing the Blackboard versus Desire2Learn lawsuit, Al Essa proposes: “In addition to the core technologies associated with a [Virtual Learning Environment], the Blackboard patent potentially covers any infrastructure and integration elements when used in the context of course delivery.” Could that cover our online course reserve systems? Or our portals for delivering electronic materials to online classroom environments? It may apply directly to our services.

Open Access Journals


Closer to home is the recent announcement by the science and medical libraries of Yale University to discontinue their subsidy of author charges for BioMed Central journals. To me, BioMed Central’s response speaks volumes for how they view themselves — more aligned with the values of the business community than that of the educational community. This may explain some of the reaction that we have been seeing to the announcement.

[20070812T1930 update: Please note that the first link in the last sentence points to a posting by Bill Hooker in his Open Reading Frame blog about the economics of BMC's publishing model. Bill is decidedly pro-Open Access -- as am I -- and we have a running discussion in the commentary of this posting on DLTJ.]

Clashing Values


I think we have examples of clashing values — the values of the higher education community and the values of the business community. The values that drive the latter are characteristically geared towards profit-seeking for shareholders and others with a financial interest in the business. The values of the former tend to be towards collegial cooperation. Please note that I’m attempting to use terms that are not inherently loaded with statements of the merit of these values. Instead note the disconnect between drivers of the educational and business communities. I think it is this disconnect that cause those in the educational community to react so negatively to the actions of those in the business community (be they lawsuits over patents or inflationary increases in journal pricing). After all, if you are at an academic institution, do you want to see your license and maintenance dollars go to funding lawsuits against competitors? In analyzing Blackboard’s actions, some have speculated that this is what can happen when a technology company runs out of intellectual capital — it has to resort to lawsuits to hold off competitors, paralyze the open source community, remain profitable, and stay afloat. Are there library technology vendors in a similar predicament?

So here’s the point: I propose that it is further evidence that we need to take control of our destiny. Not to spell out a doom-and-gloom scenario, but there may be a “perfect storm” brewing in the consolidation of the integrated library system vendors, the entrance of venture capital into the ILS market place (and the corresponding expectations for profitability), and the rise of open source options to the traditional vendor-supplied ILS. None of the ILS vendors appear to be striking out with lawsuits like Blackboard has done. A spirited discussion could be had on whether the ILS vendors are pricing their products in an unrealistic way (as with the BioMed Central example). In any case, it would be in the best interest of the students and faculty that we represent to be mindful of these clashing values. While it is important to be respectful of the traditional values of the business community with whom we interact, it is even more important to act in a manner consistent with the values of our traditional academic community with which we are a part.

The text was modified to update a link from http://blackboard.com/company/patentFAQ.htm to http://www.blackboard.com/About-Bb/Patents/Frequently-Asked-Questions.aspx on January 19th, 2011.

The text was modified to update a link from http://chronicle.com/daily/2007/08/2007081005n.htm to http://chronicle.com/article/In-Preemptive-Action/122899/ on January 19th, 2011.

The text was modified to update a link from http://www.sennoma.net/main/archives/2007/08/yale_vs_bmc.php to http://sennoma.net/?p=536 on November 6th, 2012.

The text was modified to update a link from http://www.escholarlypub.com/digitalkoans/2007/08/05/yale-cancels-biomed-central-membership/ to http://digital-scholarship.org/digitalkoans/2007/08/05/yale-cancels-biomed-central-membership/ on November 6th, 2012.

(This post was updated on 06-Nov-2012.)