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US Patent Office To Re-Examine Blackboard Patent 115

Mr_5tein writes "Groklaw is reporting that the US Patent and Trademark Office has just ordered a re-examination of the e-learning patent owned by Blackboard Inc, thanks to a filing by the Software Freedom Law Center. SFLC's press release states, 'The Patent Office found that prior art cited in SFLC's request raises "a substantial new question of patentability" regarding all 44 claims of Blackboard's patent...' The SFLC explains that though such re-examinations may take a couple of years to complete, approximately '70% of re-examinations are successful in having a patent narrowed or completely revoked.'"
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US Patent Office To Re-Examine Blackboard Patent

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  • its nice, but... (Score:5, Insightful)

    by gravesb ( 967413 ) on Friday January 26, 2007 @11:30AM (#17769048) Homepage
    Its good that there are agencies out there that look for bad patents and bring them to the gov't's attention, but it would be much better if the patent clerks did a better job screening the patents, or these challenges came during the comment period.
    • Re: (Score:3, Insightful)

      by Anonymous Coward
      If patent service worked as designed those patents shouldn't have been granted in a first place.
    • by Miseph ( 979059 )
      Yeah, it does seem that it be less expensive and function better if the USPO actually did their jobs the first time. Call me crazy, but I'd rather forgo another round of trivial tax cuts and start to see corrupt, inefficient, and chronically under performing get overhauled and increase services for the same amount or less than what we pay now.
    • Re: (Score:3, Informative)

      I asked the same question to a friend a while ago, his response was rather discouraging.

      As he explained to me, patent clerks are paid on a commission basis on how many patents they grant, not on how many they review. That, in and of itself, is rather discouraging, but it is compounded by the way that patents are granted or denied. In order for a patent to be granted only one of the claims has to be novel and innovative. Once this has been established, the patent clerk and the applier go through a revie
      • Re: (Score:2, Interesting)

        by Anonymous Coward
        As he explained to me, patent clerks are paid on a commission basis on how many patents they grant, not on how many they review. That, in and of itself, is rather discouraging

        your friend is an idiot. patent clerks are paid a salary. there is no 'commission'. there is a production system, which is based on patents granted and patents reviewed and in-between.
        • Re: (Score:3, Informative)

          If you're going to make corrections to someone else's post (which is perfectly fine), try refraining from making direct insults. "Commission" isn't the most appropriate term to use, Quota is more appropriate, but my description of the system is still correct.

          And if you don't believe me or "my friend", you can take it from someone else who actually does the work( http://yro.slashdot.org/article.pl?sid=05/07/29/12 30256 [slashdot.org] -- forum post 1/2 way down)

          You are completely wrong. I am a patent examiner. Patent examiners are under continual pressure to approve patents. We all have quotas, set by our payscale and by the area in which we work, and failure to meet the quotas results in being fired. Also, failing to respond to an amendment in time can result in being fired, even if you have been 30% over quota up till now and then three amendments land on your desk in one week that are all due because they were delayed somewhere else along the way. There is no lack of upward mobility - patent examiners can move up all the way to GS-13, I believe, without any competition.

          Also from the wired article ( http://www.wired.com/news/busin [wired.com]

    • Re:its nice, but... (Score:5, Interesting)

      by inviolet ( 797804 ) <slashdot @ i d e a s m a tter.org> on Friday January 26, 2007 @12:17PM (#17769908) Journal

      Right now, he patent clerk's job is to assess prior patents (easy) but not prior art (expensive).

      [...] it would be much better if the patent clerks did a better job screening the patents [...]

      That would require the patent clerks to be, or to hire, experts in the relevant field. That's possible but expensive. The cost of doing so is almost certainly higher than the cost of the current system: hire experts only when the patent gets challenged.

      Since very few patents ever do get challenged, we are probably all saving money with the USPTO the way it is.

      • Re: (Score:3, Insightful)

        by Speare ( 84249 )

        Since very few patents ever do get challenged, we are probably all saving money with the USPTO the way it is.

        If you count just the tax dollars that fund the salaries of the USPTO, perhaps you're right.

        If you count the list prices paid by end-users of products containing "inventions" that were well understood to many manufacturers, but patented into an artificial monopoly anyway, I seriously doubt it. We all pay more for everyday products of all sorts, thanks to the patent license fees held by companies

        • The USPTO is not tax funded. All the income is generated by fees on applicants and patent holders. In fact they make more money then Congress budgets for them so they also pay for part of DHS.
          • by Speare ( 84249 )

            That just makes my point even moreso: the pricetag on your Apple iPod includes paying USPTO folks to sit around and rubber-stamp patent applications that may or may not be novel, and the pricetag on your non-Apple device also pays for licenses to allow the non-Apple device to play Quicktime media. You're charged more in either case.

            • The fee for a large entity to file a patent application is $790 with additional fees for claims in excess of 3 independent and 20 dependent. $790 is hardly breaking the bank for a multi-million dollar company. Take a look sometime at the published patent applications and see how many claims the applicants on average try to get versus what they ultimately get. They obviously have no problem paying the fee as the protection is worth millions to them. You are blaming the USPTO for industry trying to snowba
      • Right now, he patent clerk's job is to assess prior patents (easy) but not prior art (expensive).

        Theoretically, examiners are, nominally, required to access all avaliable "printed publications" which, in addition to the US patent database, include others, such as foreign patents, and other "non-patent literature", which could be things like scientific journals, sales brochures and other company/organization literature, etc. Back in the primative pre-computer era the patent office search rooms had row afte

      • That would require the patent clerks to be, or to hire, experts in the relevant field. That's possible but expensive. The cost of doing so is almost certainly higher than the cost of the current system:
        Sounds good to me. You get far, far less idiotic patents through, AND you significantly increase the price of a patent application, so applying for 100 stupid patents in the hopes you'll be able to sue someone, someday, becomes a lose-lose situation.
  • by tsa ( 15680 ) on Friday January 26, 2007 @11:31AM (#17769062) Homepage
    I read the title and I thought: "Hey, has someone patented the blackboard? Cool!"
    • Re: (Score:3, Informative)

      by aicrules ( 819392 )
      No, just the internet-based equivalent ;)
      • by Firehed ( 942385 )
        As a student that has to use it, I'd say you're not missing much. The real thing is better, even if I'm all about the dry erase boards.
      • by dickens ( 31040 ) on Friday January 26, 2007 @01:34PM (#17771278) Homepage
        I'm starting my fourth semester of blackboard classes, and while it sure is nice not to have to trek to a classroom miles away to go to night school, the software really is pathetic. I can only imagine what cool things could be done with it if there was a motivation to innovate.

        Oh, wait, that's why there is a patent system isn't it? This is going to be an object lesson in how much better the software (or its competitors) gets real quickly once stupid, overly-broad software patents get overturned.

        • Re: (Score:3, Interesting)

          by aicrules ( 819392 )
          In that lies their problem with this particular patent. Several companies have had internet-base elearning for a long time. Several were built before Blackboard was created. Innovation has absolutely occurred outside of blackboard's LMS. When we go into a client and part of our solution is to replace their LMS, and it's Blackboard, we typically get bonus points just for being so much better out of the box. They do have their little niche, but it is VERY little and they don't do it all that well.
      • Blackboard (the software) would be the equivalent of a blackboard (the one with chalk) but where the chalk breaks 95% of the time, the erasers don't work, and the board falls off of the wall every other day. Oh, and the chalk has little metal flecks embedded in it that make that awful screeching noise whenever one writes.

        That would be a equivalent.
    • lol I'm not the only one then.
    • Hey, has someone patented the blackboard?

      Don't be silly, a blackboard has many years of prior art. They patented the instructional use of blackboards as a teaching device. It's a business method, so the patent is totally legit.

  • by chriss ( 26574 ) * <chriss@memomo.net> on Friday January 26, 2007 @11:33AM (#17769108) Homepage

    I develop educational software myself, so I'm very pleased with this. Two points seem to be especially interesting:

    • Although Blackboard sued Desire2Learn, a commercial entity, for patent infringement, the reexamination is drive by three open source projects, supported by pro-bono Software Freedom Law Center. So a tendency of free software to fight patents directly.
    • According to TFA 70% of all reexaminations lead to narrowing or revoking the patent, but this is an average over all reexaminations. There has been a lot of prior art here, so I think the chances are even higher here.
    • Re: (Score:3, Insightful)

      by geoffspear ( 692508 )
      Yes, but doesn't your second point assume that many of the earlier reexaminations weren't based on substantial reasons? I'm not sure this is common; I'd assume that reexaminations in general have such a high rate of overturning patents specifically because they're based on evidence similar to that seen here.
      • Anyone else find it infuriating that 70% of re-examinations result in them revising their initial findings?

        What kind of crappy department accepts an error rate of around 70%? And you know it's worse than that, because these are just the cases that people give a crap about. You know that the total library of existing approved patents are at least 90% pure crap, if 70% are changed whenever challenged.

        Why don't they just issue us all personal stamps, and let us stamp our patent on anything we happen to walk pa
        • Re: (Score:2, Informative)

          by KingEomer ( 795285 )
          70% of reexaminations being "succesful" does not mean that 70% of all patents are invalid. All we know is that 70% of the patents that are reexamined are invalid. We need to know the proportion of patents that are reexamined in order to draw any conclusions about the total number of invalid patents, and thus, the actual error rate of the patent office.

          For example, if there have only been 100 reexaminations in the past 100 years, while, say, 100K patents have been granted, then the failure rate of the patent
          • by ajakk ( 29927 ) on Friday January 26, 2007 @12:42PM (#17770386) Homepage
            Reexaminations cause a change to be made in the claims in 70%. In only 12% are all of the claims cancelled. In the remaining cases, the applicant amends at least one of the claims. However, that really doesn't mean that much as most patents have 20-30 admitted claims. As a patent litigator, I find reexams mostly useless because the Patent Office cannot look at any art other than patents and printed publications. Also, in inter partes reexams (the most common type), the person requesting the reexam only has one shot to say anything. After the reexam starts, it is all between the PTO and the patent holder. During litigation, I can have my experts, my clients, and myself telling the court why the patent is invalid.
            • So the more invalid patents go to courts and get changed there, as opposed to directly to the PTO? (I'm not trying to be contrary; just asking for clarification. :))

              If that's the case, how often is such litgation successul in changing the patents?
            • Don't you mean ex parte reexamination?

              After reexam is ordered, it's only the patent owner involved. The inter partes variety is a relatively recent extension made after I left the PTO.
          • I agree with you about needing more data to make an accurate claim, but it's my intuition that there are a great many more patents that would be invalidated if someone bothered to make a challenge.

            And since we know that, of the patents that get challenged, 70% are invalidated/amended, we either have to assume that this sample is somehow aberrant (e.g only really inaccurate patents are ever challenged), or we can assume that the patents are a fair sample set, and that the percentages are representative.

            Witho
  • by popo ( 107611 ) on Friday January 26, 2007 @11:35AM (#17769130) Homepage
    For years, the patent office was granting patents based upon adding the words "Internet based" to what was otherwise an unoriginal idea.

    Education? Not new.
    "But its on the Internet". Hey! That's new!

    There are still literally thousands of patents floating around that were based on this mindless logic, and it still happens today.
    Just last week, Microsoft patented a "digital means of recording one's life history". One might call it a diary -- or a time capsule,
    but no this was something new. Why? Because its ...wait for it.... "digital".

    Sigh.
    • Re: (Score:3, Insightful)

      by noidentity ( 188756 )
      A handwritten diary is also digital (unless the handwriting is really bad).
    • But prior art there is easy - simply forward a copy of any video-taped episode of Doogie Howser, M.D.

      Now, finding someone who will admit to having video-taped an episode of Doogie Howser might be problematic...
    • For years, the patent office was granting patents based upon adding the words "Internet based" to what was otherwise an unoriginal idea.

      h = openFile("ordinary_business_behavior.txt");
      while (w = readNextWord(h)) {
          if (random(0.0,1.0) > 0.96) {
            w = w + " using a computer ";
          }
          print(w);
      }
    • Indeed. I'm working on a prior-art project for the gaming industry and it seems that all one had to do to get a patent in that sandbox was to say, "attached to a gaming machine". Hence, a touch-screen is not patentable in itself, but "attached to a gaming machine" it is. Ditto for USB connectors, graphics chips, etc.
  • Prior Art... (Score:3, Interesting)

    by aicrules ( 819392 ) on Friday January 26, 2007 @11:40AM (#17769198)
    I guess it would be pretty difficult for them to get over the prior art issue, considering they started in 1997. Maybe they're contending that all that other elearning before they even existed wasn't REAL elearning.

    As I work for a company that would have been negatively affected by this patent, I am really glad that this is happening. We've had "prior art" elearning related to basically all of their patents since 1995/96 specifically in a web-based format. Now watch the stock ticker on their site go zooming down once this actually goes through.

    I think that, like frivilous lawsuits, frivilous patents should have equally painful repercussions. Blackboard should have to pay anyone showing reasonable claim to prior art a penalty for this ;)
    • I'm in the same boat as you. Our company just celebrated its 20th anniversary this past year, so it's not like we haven't been doing this stuff for a while. I think I will patent a method for opening a bag of chips that doesn't result in the bag exploding and throwing chips all over the place.
  • The SFLC explains that though such re-examinations may take a couple of years to complete, approximately '70% of re-examinations are successful in having a patent narrowed or completely revoked.'

    It's interesting that government dollars--uh, our dollars--are used to spend "years" to determine if a commercial interest may continue to make money from this patent.

    Go captialism?

    • Re: (Score:3, Informative)

      by thebdj ( 768618 )
      Actually, none of your money is spent to fund the USPTO. The agency is completely funded by the fees it raises for examinations, re-examinations and the myriad of other fees associated with the patent system. Actually, a lot of the money the PTO makes winds up going back to fund other government agencies.
      • Re: (Score:2, Insightful)

        Yes, much like the Post Office. And *thst* is why they grant everything in sight; the USPTO is a profit center for themselves and the gov't.
      • by golodh ( 893453 ) on Friday January 26, 2007 @12:05PM (#17769648)
        Yes, you are completely right ... the USPTO is one of those rarest things ... a Government profit center. It's revenues come from the fees for the patents it awards. One granted patent = one billable fee.

        This might explain why the USPTO shows so little interest in making sure that the patents it awards are of high quality. For the USPTO it makes absolutely no economic sense to it spend more time on individual patents than the absolute minimum.

        After all, there is this appeal procedure right? So if people have objections to patents we issue they can use that. In the mean time, when you're paid by the item it makes absolutely no sense to spend too much time perfecting each item you make. And if people out there don't like a patent we issue, then they can pay us a fee for a review procedure.

        Simple economics really. That's what management is all about, right?

        • Re: (Score:3, Insightful)

          by thebdj ( 768618 )

          Yes, you are completely right ... the USPTO is one of those rarest things ... a Government profit center. It's revenues come from the fees for the patents it awards. One granted patent = one billable fee.

          Actually, if a Patent survives its terms it is two or three billable fees. There are maintenance fees to keep a patent alive.

          This might explain why the USPTO shows so little interest in making sure that the patents it awards are of high quality. For the USPTO it makes absolutely no economic sense to it spend more time on individual patents than the absolute minimum.

          Actually, it has a lot to do with time constraints and the backload of patents. The system is already upwards of 3 years or more behind in some fields. The problem is they are trying to catch up and do not have the time to do it. They also do not have the money since Congress funnels a lot of what they make to the government departments that LOSE money.

          Honestly, one of the be

        • by geekoid ( 135745 )
          No it's not, it's a zero cost center.
          There's a difference.

    • by Marnhinn ( 310256 ) on Friday January 26, 2007 @11:56AM (#17769502) Homepage Journal
      Government is slow for many reasons - and in most cases that is a good thing given all the stupid and strange things people try to do each year (at least that I see).

      Realize that there is a tradeoff - if they make it fairly simple and quick to overturn patents, then the system will get bogged down with the same amount of spam through that pipe.

      The patent system was designed with the idea that it would protect the rights of the patent holder. In the beginning, it was decently hard to patent junk and things that had prior art (due to the fact that each application was reviewed by someone who hopefully had some knowledge in the area). Fast forward to today when there are millions of patents granted each year. There is no way the system can check and review each patent application before it grants the patent (as it should).

      Capitalism has little to do with it - the Patent office simply is getting overwhelmed by the numbers. It is more of a lack of qualified and trained staff to do the work (cause looking at patents all day is something that doesn't pay much and is fairly boring to most people).
      • by ed333 ( 684843 )
        "millions of patents granted each year" That's quite an exaggeration considering in over 200 years the patent office has now issued about 7 million patents TOTAL. Yes, there is a backlog of cases for the examiners to reveiw, but that is no excuse for some of the crappy jobs they've done. Not just in allowances, but I've also seen some rejections on baseless grounds, as well.
    • by mw13068 ( 834804 )
      So, by your logic, bad law, or bad software idea patents (there aren't any good ones) should stand if it's no inconvenience to you...

      Gee Thanks!

      Go SFLC!
  • There should be no patents allowed to cover any type of 'education' method or process. This is akin to commercializing education in the name of the almighty buck (Private schools, universities). It's sick.

    The free exchange of information should be free and open to all without regard to class, race, religion, etc.

    • Re: (Score:3, Informative)

      by Mr_5tein ( 1055340 )
      Well, several folks have commented that one should not be able to patent an educational process or method, implying that Blackboard has attempted to do so. They have not; instead, Blackboard has patented tools and features in it's online learning management software that they claim they invented--the problem is that these tools and features have existed in numerous forms in scores of other software packages on various platforms, and cited prior art demonstrates that these tools and features were even avail
    • So, by logical extension of your argument I should not be able to copyright a textbook I've written? I'm glad it's your humble opinion, because it certainly isn't your clearly-thought-out one.
  • Anyone knows how much work is involved in checking up if those claims are valid or not? I seem to be underestimating the task. I would have expected that this was something that could be handed off to an intern to just run off a checklist: yes|no
    • Anyone know how much work is involved in checking up if those claims are valid or not?

      Typically tens (or even hundreds) of thousands of dollars in attorney fees for the patent owner and hundreds of man hours for some of the most experienced patent examiners at the USPTO. A reexamination is a complex legal proceeding that involves a lot more than a checklist. Reexaminations can easily last 10-15 years, so this decision doesn't really mean anything yet.

      A good example is the patent from the Blackberry (NT

  • Free courseware (Score:2, Informative)

    by taos23 ( 1003005 )
    To higher ed faculty who are unaware, Available [nfomedia.org] is a modern day web appication, free alternative to BB, et al.
    • by kalaf ( 963208 )

      Wow, I never bothered to look that up before. The first 35 claims are all extensions of claim 1 and 2, for which I think prior art has existing since the late 70's or early 80's...

      I was pretty worried about how this was going to affect the field a couple months ago. I'm feeling a little better about it now.

    • --
      Answer truthfully (yes or no) to the following question: Will the next word you say be no?
      My honest answer, sir, is no.
  • Oh well... (Score:3, Funny)

    by Superfreaker ( 581067 ) on Friday January 26, 2007 @12:28PM (#17770108) Homepage Journal
    I guess its back to the old drawing board...

  • by XxtraLarGe ( 551297 ) on Friday January 26, 2007 @12:42PM (#17770388) Journal
    As an LMS tech at a community college, I'm very hopeful that this will be reversed. I've evaluated several LMS's because we are currently near the end of our contract with our current one, and there's really nothing that Blackboard does that is very different than what everybody else offers. Right now, we're looking into Moodle [moodle.org] and Sakai [sakaiproject.org], as well as some commercial products.
    • I'm in the same boat, but we're evaluating new LMSs 'cause we use WebCT 4.1 still and it will go to level B support Jan of '08. Havent' found one that is as easy to use (with no instruction, etc) as CE 4.x yet tho... be interesting to discuss w/ you over email.
  • by theBeak ( 1003038 ) on Friday January 26, 2007 @12:49PM (#17770534)
    Having VERY intimate knowledge of Bb (no, NOT an employee), I can tell you for a fact they are the quintessential bullies: they may be the biggest kid on the block, but they're none too smart.

    They treat a good many customers as if Bb was the customer -- they are constantly issuing demands, determining their own timelines/deadlines. For example, they've been known to contact a school and say, "hey, we're taking your server down for maintenance/updates at such-and-such time, so be ready" instead of "when's a good time to do that?". They honestly feel these schools have no other choice as far as software, but a good many of their customers are waking up to the fact that Angel et al. are superior in most - if not all - aspects.

    My opinion is the folks at the top KNOW their software just doesn't stack up well against the competition and that's why they're such thugs and so vehement in this whole patent mess. They probably figure "well, if we prevail in this patent mess, we can just license it out to these other vendors, make a nice fat percentage off that, and not even bother producing our own software anymore."

    A good plan I guess. Make a piece off every distance learning program and lay off almost every staff member. That would make for a hell of an ROI.

    BTW, be warned: I'm following Bb's lead of patenting a concept by patenting: the wheel, the lever, gardening, internal combustion engines, electicity, underwear, English AND Spanish language, and supermodels. Definitely supermodels.
  • The abuse of patents has become so widespread that it is time to drop the concept. If someone can implement a product or service, good for them. If they can sell that product or service and provide their customers to satisfaction, great. But when some coat tailing company that filed a patent 3 years ago comes stomping in to collect on something they did nothing to produce, market, and support this is just wrong. Costs of producing anything will continue to skyrocket because of this behavior. So why bot
    • First, corporations in industry are always concerned about prior art. They always have been. Yes, patent litigation is built into the opportunity costs of what they are doing. However, to suggest that this so called behavior will ever grow to the point where it becomes a disincentive to innovate and sell products is completely off base. And yes, freedom to operate searches are expensive, but entirely feasible, particularly in niche industries. The solution to that problem is hire the right firm to do i

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