Caveat: This is personal opinion and should not be quoted out of context to imply *anything* particular or specific about the Patent 6,988,138. This is general commentary about software patents only. This is not official Sakai position. This post is Copyright Me – All Rights Reserved Period! Do not quote this in ANY media without contacting me for permission which I will likely give freely assuming that you convince me that my comments will be given the right context to maintain my original intent.
Let me add, that I am not categorically opposed to patents or even software patents – the essential problem is that the patent office allows overly broad and non-novel patents to get through because they are not willing to say “no” during their examination of the patent.
During the examination phase – it is a sole lonely examiner buried under a mound of paperwork versus dug-in lawyers from a well-funded corporation with no public scrutiny of the process. So to keep from being pummeled, the examiner lets the patents go through and then dumps them in the court system. *That* is the problem – the only time any true public analysis or dialog around a software patent happens is in the context of a lawsuit. And once a court case starts, we all talk have to each other with our hands tied behind our collective backs.
Each time a patent examiner takes the “easy way out” – doing a quick and dirty prior art search – the market wastes 20 million or so and a couple of years to sort it all out.
Here is the worst part – because the system is so flawed – we cannot fault companies for filing tons of patents in their space to defend themselves from scummy individuals who speculatively patent obvious ideas and then hold companies hostage. We *can* fault companies for what they *do* with those patents once they get them – but we cannot fault companies for going after defensive patents.
Here is one of those scummy individual patents:
http://www.eff.org/patent/wanted/patent.php?p=ideaflood
The patented the concept of “personalized subdomains” like csev.umich.edu. AAARGH!
So we have a bad system that is set up to encourage and reward bad behavior on the part of individuals and companies. A patent which was initially filed as “defensive” may be pressed into “offensive” use because of market conditions – and again if the court system rewards “offensive” use of “defensive” patents – it will happen more and more.
Until we can fix the patent system, we must simply spend the money each time one of these patents come out and pay lawyers to talk to each other – so we need a talented legal team (SFLC) at the ready all the time.
Again – the overall theme from me – if you are unhappy – write a check to the SFLC. Do it now. Not just for any one patent – but for a whole series of patents that are likely to come out and not just for our market – for the next market as well and not just for the next few months – but as long as it takes.

Caveat: This is personal opinion and should not be quoted out of context to imply *anything* particular or specific about the Patent 6,988,138. This is general commentary about software patents only. This is not official Sakai position. This post is Copyright Me – All Rights Reserved Period! Do not quote this in ANY media without contacting me for permission which I will likely give freely assuming that you convince me that my comments will be given the right context to maintain my original intent.
The worst part about this Blackboard patent is the fact that thousands of people across many open source projects and commercial companies who eight weeks ago were working long days to design, build, deploy, and use the most innovative software possible for teaching and learning are now “amateur lawyers” reading patents and patent law.
I am glad that the Wikipedia entry exists and that the EdTech bloggers like Michael Feldstein (mfeldstein.com) are passionate about this issue – it is a big deal and something that needs to stay in the public consciousness until it is resolved.
What bothers me is that we just lost 10% of our brainpower across the field as everyone reacts to the patent. From the sound of things it is likely to get worse – as more patents come out we will need to invest in and react to each new patent and see (a) it applies (b) is it too broad (c) was there prior art (d) will it hold up in court (e) will we get sued (f) will our adopters get sued and (g) what is the right legal reaction to this approach. Urgh! What a colossal waste of time for brilliant innovators.
If I had any prior art other than my November 1997 IEEE Computer Article on Educational Technology (http://www.dr-chuck.com/dr-chuck/papers/columns/), I would be scrambling to add it to Wiki or putting it up on NoEduPatents.org.
I want to do *something* to try to make the world a better place and to get back to where this market again feels free to innovate (like it did 8 weeks ago). For me since this has moved into a legal arena (According to press releases Blackboard does not plan to sue open source projects or their customers *at this time*.) the solution must be a legal solution. Very sad.
Since I am not a lawyer – the only solution is to hire one. Sakai has retained SFLC (www.softwarefreedom.org) – SFLC is working pro bono for Sakai – that is great and cool and in my role in Sakai – I thank profusely whoever gave SFLC the money so they could be ready to come to our assistance when we needed legal advice.
To borrow and adapt a few words from Richard Stallman in an interview I did with him in 1995 (reference below), “Free legal advice refers to freedom not price”.
SFLC needs money – the more money they get the more likely they will spend more time on this area – and give it the attention that all of the commercial, open source, and even home-grown CMS software needs. Like it or not we are all in this together. You cannot escape this by switching software vendors or writing it yourself – knowingly violating patents using the “we are below the radar” defense is a mistake in any and all organizations.
So – if we all want to keep cooperating and innovating – it is time to act – send some money to SFLC (www.softwarefreedom.org) – It is a nonprofit so you might be able to deduct it ?.
I just sent in my first personal check to SFLC:

It is not much – barely a single tank of gas – there will be more – and perhaps I need to also give to the Public Patent Foundation (www.pubpat.org) and/or the EFF Patent Busting Effort (http://www.eff.org/patent/). I like the fact that when you give to the EFF, you get a hat or T-Shirt. So for now I am going to pace myself – the $50.00 is a symbolic gesture in the name of freedom.
It would be darn cool if a bunch of $50 (smaller or bigger is OK) started to pile up on the desks of the SFLC. Regardless of whether you are a student, or teacher, developer, company in this market, or even a really wealthy social activist – it time to write your first check in this matter.
Remember – “Free refers to freedom – not price”.
http://www-personal.umich.edu/~csev/media/nbn/otr/gnu128.rm