LWN: Comments on "The Blackboard Patent: Where's Waldo?"

The Blackboard Patent: Where's Waldo?

mcopple — 2006-09-07T15:56:51+00:00

My reaction to this article is disbelief. Microsoft's motives are crystal clear, even after the author did her best to take the quotes completely out of context -- to encourage the use of the .NET framework. Put Blackboard on .NET, give Blackboard the knowledge and encouragement to add features to it, and next thing you know, customers are going to their local Microsoft reseller to find a copy of Windows Server to put it on. That's not conspiracy, that's old-fashioned business sense.

As for the patent trolling, that too has a simple enough answer -- one that does not require a dark conspiracy by Darth Ballmer. Patent trolling is popular right now, and it works. Witness the world of hurt RIM end up in, despite the fact that the patents they supposedly infringed upon were being invalidated as the judgement came out. All you need is a clever lawyer and a pile of cash, and suddenly, your underfunded competitors are dead in the water. The only reason SCO did not succeed is that it happened to choose a victim (IBM) with more lawyers, more cash, and the market share to ride out the storm while SCO sputtered out.

Blackboard isn't a pawn in some massive Microsoft conspiracy -- it is a market opportunist that sees a chance to make its market dominance permanent by knocking its competition out for good. Admittedly, it is a smarmy practice that consumers and customers are right to condemn; but it is a standard tool in today's business hard-ball playbook.

The Blackboard Patent: Where's Waldo?

lysse — 2006-09-07T15:22:44+00:00

Claiming that possessing a degree conveys a familiarity with the education system is a bit like like claiming that eating a three-course meal conveys a familiarity with cookery...

The Blackboard Patent: Where's Waldo?

roelofs — 2006-09-01T04:55:53+00:00

While no fan of Microsoft, isn't it a slightly paranoid to blame them, when Blackboard filed for the patent in 2000, and Microsoft apparently did not get involved until 2001?

Technically, I think PJ "merely" pointed out the money connection (perhaps a tad gleefully). And yes, maybe sometimes she's a little over the top when it comes to conspiracy theories in general and Microsoft in particular.

But the point is, we don't know for sure, one way or the other, and the facts are certainly suggestive. More to your point, she didn't say Microsoft prompted Blackboard to file the patent; instead, the (fairly obvious, I thought) implication was that they instigated/encouraged the lawsuit and are still in the process of bankrolling it. (Patent suits are, after all, hideously expensive; there was an article in the paper just today about somebody's loss widening significantly since last year, primarily due to patent-litigation costs.)

Whether Blackboard might move from commercial attacks to open-source is anybody's guess, but (1) it's certainly a good cover if that's the plan--i.e., let a third party do the dirty work, quite reasonably starting at the top moneywise and working their way on down, perhaps getting around to open-source targets in 3-4 years; and (2) remember Unisys? They also backpedaled on a verbal promise w.r.t. freeware.

In short, even without exerting any overt or covert pressure to target open-source software--which, after all, would be rather risky from the antitrust perspective, Bush administration or no--one could plausibly argue that Microsoft is simply rolling the dice and hoping for the best. Sure, it's a long shot, but they've got cash to burn and the potential payoff is pretty decent, so...why not?

That said, I remain fairly skeptical...but it's hard to dismiss the idea completely.

Greg

The Blackboard Patent: Where's Waldo?

giraffedata — 2006-08-31T21:37:14+00:00

It starts out with "I'm sure you have heard ". I've never heard of blackboard,

This is one of my pet peeves in news publications. I think any statement that "I'm sure you have heard," should be a link to the LWN article that told it to me. Because I think many of us read LWN precisely because we don't read voluminous other sources of information.

I once subscribed to an afternoon print newspaper that always assumed I knew the day's major news before I picked it up. Well, I didn't.

FTR, while I can't say I never heard of Blackboard, I certainly had no recollection of it.

The Blackboard Patent: Where's Waldo?

sepreece — 2006-08-31T20:06:43+00:00

While I appreciate the "where's Waldo" aspect, it's pretty hard to sell the idea that the whole thing is a Microsoft attack on open source (which is a big chunk of the exposition) when the people being sued are not open source and the people doing the suing have said they were not going after open source and were only pursuing service offerings.

Yes, they MAY be out to get us, but there's nothing in what is cited here to make it seem like that's the case here.

The Blackboard Patent: Where's Waldo?

kreutzm — 2006-08-31T19:50:29+00:00

While I tend to like articles by Pamela Jones, I think this was not her best one. Let's state my the reasons:

It starts out with "I'm sure you have heard ". I've never heard of blackborad, nor that they had a patent nor about their software. I have a university degree, so I guess I know a little bit about education. But maybe because I live in europe? I think the introduction should start with an overview of the problem and the product, not an assumption which might hold true for an american college student only
The article is quite confused. First it starts out with the claim by blackboard, next it talks about turmoil, next suddenly about the patent (which we were supposed to know already by the introduction and then finally how it pertains to free software. (The waldo part is actually quite interesting!). A little more structure and maybe clearer wording please (even if this means missing a link or two)
Several links do not hold what they claim, e.g. the plain english version is not a direct link, but a page where another link to a pdf page is embedded, similarly the link to the diagramm again is a page with lots of texts and several graphics.

I think the topic is important and deserves the front page of lwn, but it also deserves a little more care while preparing, because at least I would have given up reading almost too early (I first thought, that it was about yet another obscure patent claim between two companies I've never heard off) and would have missed the new "Waldo" part.

In conclusion: good topic, but sub-optimal presentation :-))

The Blackboard Patent: Where's Waldo?

Zenith — 2006-08-31T16:29:46+00:00

While no fan of Microsoft, isn't it a slightly paranoid to blame them, when Blackboard filed for the patent in 2000, and Microsoft apparently did not get involved until 2001?

While I think that the patent is clearly trivial and should be reversed, I cannot see how this can be blamed on anyone else than the people at Blackboard.

The Blackboard Patent: Where's Waldo?

wookey — 2006-08-31T12:51:53+00:00

In the UK 'publication' of a patentable idea can be as little as telling someone else outside your organisation about it. So depending on the relationship between the author and the company it could well already be deemed sufficiently 'in the public domain' to be valid prior art. The practical problem is that you need to be able to prove dates in court and that is very difficult without either a dated logbook or dated publication.

None of this is very relevant until the EPO gives the same or similar patent. US law applies on the existing patent and that is quite different in the details of what counts as prior art. But in general what counts in practice tends to be interpreted depressingly narrowly. It is no good being able to show two things that cover all the patent claims in different articles unless you can find another article which references them both. For it to be 'obvious' that combining the ideas in both articles might be a good idea, it has to actually be written down somewhere. This is a ridiculous view of the world, especially in software, but that's the way the law works. The validity of this concept is being challenged in the upcoming case Supreme court case KSR International Co. v. Teleflex.

This is a very useful (if a little dry) article explaining the current state of US law on what prior art makes something 'obvious'. This is the nub:
The Federal Circuit's very first task was to adopt the decisions of the predecessor courts as precedent, South Corp. v. United States, 690 F.2d 1368 (Fed. Cir. 1982) (en banc). Regarding the law of obviousness, the court of appeals discerned in its Court of Customs and Patent Appeals precedent a rule that the prior art, in order to render an invention obvious, must suggest an advantage to be derived from combining their teachings.

Now you get an ideal of the style, but it is well worth reading if you actually want to understand this stuff.

For me, the most interesting aspect of the blackboard case is all the Education people saying what a travesty this is and how this is the 'worst patent ever'. Take every opportunity to explain to them that nearly all the others are just as bad in their respective fields - they are merely becoming aware of the nightmare that software patents represent.

that's not a bug; it's a feature.

smitty_one_each — 2006-08-31T12:02:48+00:00

Darn right: we need to farce like this to show that software patents to underscore "there is nothing new under the sun", and gather the political will to move us into the glorious post-patent future.

The Blackboard Patent: Where's Waldo?

kleptog — 2006-08-31T11:53:31+00:00

In first-to-invent systems you can only claim to have invented it up to a year before you filed it. Prior art still has to be published to count, so the whole discussion only comes up if you had filed for a patent about the same time. Then you'd argue about who was first, it's way to late for that now.

The only difference first-to-file would have made here is that their own product would have invalidated their own patent, given they released the product before filing the patent (I think, the article doesn't say when they released their product using this patented stuff). In first-to-file systems *any* publication, even your own, can be counted as prior art against your patent.

The Blackboard Patent: Where's Waldo?

dberkholz — 2006-08-31T09:49:06+00:00

Isn't it different in the US? First to invent rather than first to publish or apply can get the patent.

The Blackboard Patent: Where's Waldo?

ncm — 2006-08-31T06:58:41+00:00

It's only usable to invalidate the patent if they published it. That's the original purpose of the patent system, to ensure that useful inventions become public knowledge, and to provide a monetary incentive to the people who can make that happen. Of course allowing patents on trivial "inventions" undermines the whole purpose, because the patentholder can force real inventions that depend on them off the market.

Does anybody remember Wilkinson Sword? They once had the patent on stainless-steel razor blades. They didn't sell them, they just kept anybody else from selling them, for seventeen years.

The Blackboard Patent: Where's Waldo?

twiens — 2006-08-31T05:49:26+00:00

According to http://en.wikipedia.org/wiki/History_of_virtual_learning_...

June 30, 2000: Blackboard Inc. application for patent is filed.

The Blackboard Patent: Where's Waldo?

yodermk — 2006-08-31T04:11:58+00:00

Anyone know when this patent was filed?

Back in late 1999 I wrote a web-based courseware program for a company I was working for at the time, and it had many of these features. It was pretty much ready to go, but then the company decided they didn't want to be in that market. :(

I don't know if the company still has the code, and if so if it could be used as prior art. I don't think anything I did was particularly new, though ...