January 25, 2007

In response to a formal request filed by the Software Freedom Law Center (SFLC), the United States Patent and Trademark Office (USPTO) today ordered re-examination of the e-learning patent owned by Blackboard Inc.

SFLC, provider of pro-bono legal services to protect and advance Free and Open Source Software, had filed the request in November on behalf of Sakai, Moodle, and ATutor, three open source educational software projects. 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 patent in question, “Internet-based education support system and methods” (U.S. 6988138), grants Blackboard a monopoly on most educational software that differentiates between the roles of teacher and student until the year 2022. In July, Blackboard filed a lawsuit against Desire2Learn, a competing educational software maker, alleging infringement of its e-learning patent.

Although Desire2Learn’s software is not open source, the open source and educational software communities responded with concern to the possibility of an additional lawsuit that targets them.

“We filed this re-examination request to help free software developers create and distribute their original software without having to fear being sued over this patent, a patent that should never have been awarded in the first place,” said Richard Fontana, the SFLC attorney who filed the re-examination request. “We are now a step closer to keeping everyone safe from this patent.”

A re-examination of this type usually takes one or two years to complete. Roughly 70% of re-examinations are successful in having a patent narrowed or completely revoked.

Shortly after SFLC filed its request for re-examination, Desire2Learn filed its own separate re-examination request. The USPTO has not yet acted on that request.

The patent re-examination request, as well as the USPTO’s order for re-examination, are also available online.

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