Matthew Small, BlackBoard's General Counsel is quoted today in a Chronicle for Higher Education article (subscription required)...

"..."We don't claim to have invented the course management system," said Matthew Small, senior vice president and general counsel for Blackboard. "This is about specific functionality."..."

That's correct, they don't and some of the hyperbole about their lawsuit has been over the top .... but I would claim not unjustified.

You see, patents are tricky and complex things and no one can really really tell you if something is infringing a patent without the full-on mess of a lawsuit. Everything else is a calculated risk.

This doesn't cause a complete meltdown of all commerce for several reasons.

  1. The patent holder doesn't want to kill off everyone who wants to use the patented technology, they want people to use it and pay them a royalty. If they set the royalty price too high, no one buys and the patent holder gets bupkis. This is even true for patent trolls.

  2. In the case where multiple patents are held by multiple companies, they will sometimes agree not to sue each other - either formally or informally. Patent portfolis are like nuclear weapons in that they provide mutually assured destruction to anyone who launches first.

  3. Patent litigation is expensive and a calculated risk for both sides. A company could pay a lot of money just to get the patent and lose it all in the first infringement suit. You place your bets and roll the dice...

The educational technology area hasn't seen many patent lawsuits. There are patents out there for educational processes and related technologies, but so far, no seems to have pulled the trigger.

BlackBoard is the first to pull the trigger. They launched without warning, they did the equivalent of yelling 'Fire' in a crowded theatre and everyone is wondering if they have to scramble for the exits or not.

Mr. Small's comments seem to indicate that there is a fire, but it's a small one and it's only going to burn down one company's house, but the problem with yelling 'Fire' is that everyone else is afraid of it spreading. We panic. This is why it is against the law to yell 'Fire' when there isn't one.

BlackBoard has done the social equivalent. They have created fear and panic in the educational technology community and brought down untold vitriol on their good name. They are still acting surprised by this and I am wondering if this is calculated or plain cluelessness. Either one is not good for BlackBoard.

If they have a real beef with Desire2Learn, they should have worked it out quietly amongst themselves. Companies do this all the time. By making a federal case out it (literally), they invite the court of public opinion to the party.

Desire2Learn is not safe either. If they decide to settle because BlackBoard makes a reasonable offer of settlement (happens all the time), then the whole ed tech community will think we have been shafted by the greedy for-profit companies. It will looked on as a slimy, deal cut in a smoke-filled backroom amongst cigar-chomping corporate barons. It will look like us against them. BlackBoard and Desire2Learn are part of our community, but these activities make us question their allegiances. That's real bad for everyone. We get nowhere when we can't trust our community members.

BlackBoard should have seen this coming. There are numerous examples in other parts of the technology world (Microsoft, Rambus, SCO, etc.) and it's not like them to be so clueless.