I haven’t being paying as much attention to Auricle as I would like to. My excuse is I’m contributing to and managing a series of other blogs and wikis for my work with the Higher Education Academy, e.g. the Benchmarking of e-Learning Exercise, and the Pathfinder Programme. Today, however, I thought that I would stand on the shoulders of some giants and feed Auricle with my perspective on what was a major e-learning issue in 2006 and could well turn out to be the e-learning issue of 2007, i.e. the advent of software patents in Europe. I’m offering the posting in two, hopefully complementary, forms and parts. Today’s posting is Part 1 and is delivered in my usual quasi essay format below. In tomorrow’s part 2, however, the ‘posting’ will take the form of a ‘repackaging’ of what can be a pretty tortous topic as an active concept map and graphics downloads.
I was glancing at an item in a technical publication recently when my attention was attracted to an item which mentioned a patent that has been taken out by one Reinhard RÃœCKRIEM of German company Infineon. The purpose of the Ruckriem patent is to deliberately mangle Voice over IP (VoIP) data packets and so impair internet telephony. So what’s the implications of such an esoteric patent you may say and what’s this got to do with e-learning?
Perhaps, not so estoteric if we drop the increasingly obsolete term e-learning and substitute it with, say, Technology Enhanced Learning (TEL). Buried in the technical language of the Infineon patent is the reality that a broadband provider licensing this Intellectual Property may be able to degrade VoIP data whilst leaving other data packets alone. So that very usable and cheap or even free Skype call (or similar) users currently enjoy may mysteriously degrade into warbles and quacks. That being the case users may be inclined to blame the VoIP technology whereas in reality it’s the work of the internet service provider who wants you to pay for the privilege of using VoIP and if you do so would be happy to remove the technology which is mangling the VoIP data. Just in case knowledgeable readers are considering if this applies ot wireless broadband, Infineon has also developed a technology for degrading speech over WiFi.
As good a primer as any for grasping the thorny but increasingly important issues related to software patents is the Wikipedia entry on this topic which provides a great overview. In particular the UK section contains the following important extract:
United Kingdom patent law is interpreted to have the same effect as the European Patent Convention such that “programs for computers” are excluded from patentability to the extent that a patent application relates to a computer program “as such”. Current case law in the UK states that an (alleged) invention will only be actually regarded as an invention if it provides a contribution that is not excluded and which is also technical. A computer program implementing a business process is therefore not an invention, but a computer program implementing an industrial process may well be.
Technical/industrial process versus business process? Mmmm …. look again at the Infineon patent that headed this posting. The ‘invention’ here could certainly be construed as techncial and as for ‘implementing’ an industrial process it depends on which side of the VoIP fence you are sitting on. One side, e.g. Skype, may view the invention as impeding an industrial process whereas another, e.g. a broadband provider wanting to realize more revenue may regard it as facilitative. What side of the fence would the e-learning provider be?
Another insight into the dysfunctional world of software patents is offered by the following extract from the Wikipedia entry when referring to what is called patent trolls, i.e. companies who acquire patents merely to license them and pursue those who don’t purchase such a license:
It is an integral part of the business model that patent licensing companies sue infringers that do not take a license. Furthermore, they may take advantage of the fact that many companies will pay a modest license fee (e.g.$100,000 to $1,000,000) for rights to a patent of questionable validity, rather than pay the high legal fees ($2,000,000 on up) to demonstrate in court that the patent is invalid.
So although software patents are contentious and the landscape is confused there are it seems business opportunities for those prepared to to exploit such confusion even when claims of IPR aren’t rock solid.
But are all intellectual property companies to be considered patent trolls? Nathan Myhrvold offers a robust defence when faced with such a challenge on air. Myhrvold, former chief scientist at Microsoft has set up Intellectual Ventures whose business is creating and purchasing a portfolio of patents. The company has very deep pockets, but it also employs a stable of patent attorneys to protect its inventions and intellectual acquisitions. Myhrvold believes that there are tremendous patenting opportunities in the areas of information processing infrastructure, energy infrastructure, and medicine. The BBC’s In Business radio programme Big Ideas (12 October 2006) offers an opportunity to hear Myhrvold’s responses to Peter Day’s probing. I recommend this as essential listening because it highlights the issues and perspectives in a way that text narrative cannot.
Thing get even more challenging when defensive patenting is added to the mix when even those who may wish to contribute their IPR to the common good take out patents to prevent hijacking and patenting of their work by others. On the surface it appears reasonable but just as long as the terms of the ‘free’ licence aren’t varied either by the individual or their estate at some future date. And there’s always those patent trolls to consider.
So what e-learning fish are swimming in the software patent sea?
Of course the primary example of 2006 was the 26 June 2006 award of a US software patent to Blackboard. Blackboard’s claims to have ‘invented’ significant aspects of the funcionality of what we view as a Learning Management System/VLE. Blackboard decided to flex their new patent muscles via a patent infringement suit against one of their rivals, Desire2Learn. In doing so probably did us all a tremendous favour by forcing us to reflect on whether UK HE really needs to start reducing its dependency on such innovation-stifling technologies and association with companies who are attempting to lay claim to what can be considered standard business processes within our HEIs. The ALT web site offers further information on this particular squall in increasingly stormy seas but for a plain English translation see Michael Feldstein’s e-Literate posting of 8 August 2006. Stephen Downes’ OLDaily posting Blackboard Awarded Patent on e-Learning Technology (1 August 2006) perhaps illustrates the nature of the ‘own goal’ that Blackboard has scored when he cites various other commentators who suggest:
Perhaps Blackboard’s patent is the evil impetus to move us away from a “course-based system” of ‘online courses:’ the bad idea that they want to claim as their fundamental intellectual property … we are at the point of technology disruption, and we’ll see the LMS displaced by simpler technologies with different non-functional characteristics (following the typical technology pattern).
Incidentally, unlike other software patent holders Blackboard has not given an undertaking not to pursue their claims against open source developers or distributors. But Blackboard is not going to have it all its own way because apart from making the global educational community wake up to the dangers of allowing corporates to claim IPR over processes directly or indirectly related to teaching and learning the Software Freedom Law Center in the US has:
… filed a formal request with the United States Patent and Trademark Office (USPTO) for re-examination of Blackboard’s e-Learning patent. If successful, the request will ultimately lead to the cancellation of all 44 claims of the patent. (30 November 2006)
The Software Freedom Law Center has a major league legal team providing pro-bono services so we need to watch this space carefully. It’s also worth visiting Educause Connect for an aggregation of commentary on the Blackboard furore.
But there are more examples of the potentially detrimental impact of software patents. For example, we also have Scott Wilson’s workblog posting Communities of Practice – the patent (8 December 2006) highlights the dysfunctions caused by another attempt at a software patents this time it’s a method for establishing Communities of Practice (CoP) that’s up for grabs. Business process? Technical/industrial process? So the processes of social interaction, like human genes, is intended to belong to someone, i.e. to be their IPR?
But none of the above is that new. Remember when ‘multimedia’ was the hot button in the 1990s? Pay a visit to Douglas Engelbart’s Bootstrap Institute and reflect on this item from the New York Times in 1993. As a follow-up visit ibiblio.org and view the item about the rejection of the Compton’s Multimedia and the ‘Bunny Rabbit’ patents.
So how do we find out about patents and why is this important? To answer the second part of the question first, the primary source of technical disclosures are patent applications and so to ignore these as essential sources of information about justified or unjustified assertions of novel and significant ‘inventions’ and the associated IPR is foolish. To answer the second part of the question in the UK Patent Office website provides online access via its GB Esp@cenet interface to British and European patent databases. A search interface with an email address for a name? Hmmmm ….. Enter ‘e-learning’ into the search field and nothing’s returned. Enter ‘elearning’ or ‘learning’ and things get more interesting. Type in ‘teaching’ and there’s quite a bit on robots but keep scrolling because down the list we find such patent applications as:
- Teaching method and system ( EC: G09B5/00; G09B17/00B)
- Method of Distant Learning
- Method for Differential Assessment of Adapation to Systematic Teaching in Children
- Method for Creating a Reference-Information System
Entering ‘education’ into the search field of the GB Esp@cenet interface yielded little of apparent relevance until I came across METHOD FOR SYNCHRONIZING MULTI-MOVING PICTURE BY ON-LINE EDUCATION. The abstract for this patent application lodged in 2002 states:
A method for synchronizing a multi-moving picture by on-line education is provided to reproduce the first file having a moving picture of a lecturing lecturer and the second file of lecture contents on a screen simultaneously in a computer of a learner.
I kind of though Microsoft et al had already done this years ago? Perhaps it’s the underlying technology that’s different?
But as our Infineon patent application referenced at the top of this posting or the Communities of Practice example referenced earlier shows, a patent doesn’t necessarily have to have ‘learning’, ‘teaching’, or ‘education’ anywhere in its description or title to have the potential to impact significantly upon technology enhanced learning activities.
Just as an aside, interestingly enter ‘Blackboard’ into the simple or advanced search field(s) of the Esp@cenet interface and nothing of significance is returned, even with a worldwide search.
Google Patent may currently be more limited in its scope but it still makes for an interesting resource for nascent patent watchers. The main limitation of the Google service include its reliance on the ‘patents granted’ data from the United States Patent and Trademark Office (USPTO) and so there is no ‘patent applied for’ information, no information available on the most recent patents granted, and no international patents information. However, type ‘Blackboard learning environment’ into the Google Patent search field and what do you know? 🙂 A little bit down the list of returns comes Internet-based education support system and methods (US Pat. 6988138 – Filed Jun 30, 2000 – Blackboard Inc). Note the date of filing of the patent application, i.e. 2000. The furore over the Blackboard patent only erupted when the US Patent Office granted said patent in 2006 whereas perhaps if we had been watching in 2000 (or had a Google Patent then) the international HE sector may have reflected more carefully before becoming part of Blackboard Inc’s customer base? So Google Patent may not be perfect but it does demonstrate the importance of tools and services which makes patent watching easier. The sooner Google Patent incorporate ‘patents applied for’ into its service the better as it will make it considerably more difficult for another patent filing ‘a la Blackboard’ to go un-noticed.
But we are not finished with Google Patent yet. Thanks to Seb Schmoller’s recent blog posting (15 December 2006) we are aware that it contains other gems (or is that germs?). For example, reflect on the implications of this US patent awarded to German company SAP in 2005, i.e. Structural elements for a collaborative e-learning system one of many such e-learning related patents by the company which include: Navigating e-learning course materials (awarded in 2004); E-learning course structure (awarded 2006); E-learning course editor (2006); Dynamic composition of restricted e-learning courses (2005). Graham Atwell’s Wales-Wide-Web posting Blackboard are not alone draws attention to SAP’s attempts to have what we would consider common MLE/VLE functionality become their IP via a European patent.
For commentary and campaigning perspective targeted at the European Community level then NoSoftwarePatents.com provides a pretty good launch pad. Although the Software Patent Directive, was voted down by the European Parliament in June 2005 it’s likely to return in another form and so groups like NoSoftwarePatents help ensure that MEPs hear a range of views.
Paul Bacsich’s posting Coping in a world with software patents provides some sound HE sector level advice which is based on the premise that software patents aren’t going to go away and that we all need to go back to our constituencies and prepare. Prepare for what? An extract from the disclaimer in Paul’s posting provides the answer, i.e.
… if the steps below are taken, then it will be much easier for defenders to find “prior art†when patents (or prospective patents) are being challenged, but also much easier for patent searches to be carried out by companies and their patent agents.
On the question of ‘prior art’ then the Wikipedia entry the History of Virtual Learning Environments provides a comprehensive account from 1728 until the present.
It seems to me that the key issue is that we have woken up very late in the day to the risks posed by those who now want to do far more than just lock institutions into their particular product lines via their marketing might, but we now find they have been quietly laying claim to the IP associated with the key processes of managing learning. These companies are perhaps calculating that they will therefore amass great fortunes but the corollary may well be not what they expected in that confidence and trust are now undermined, the sector is now alert, recording of ‘prior art’ is underway, and patent watching with increasingly powerful tools to do so will become the norm.
The Software Freedom Law Center provides a welcome counterbalance to the introduction of software patents in the US and in the European context we have the Foundation for a Free Information Infrastructure (FFII) which was so successful in lobbying against the Software Patent Directive (aka Computer Implemented Inventions Directive) that it was resoundly rejected the European Parliament with 648 MEPs (out of a total of 729) voting against in July 2005. The following summarises the FFII’s view of software patents:
Software patents are a barrier to a free market in information technology. Each software patent claims to “own” areas of the software market. The FFII believes that software patents are inherently unsafe, unnecesssary, and that the global patent industry seeks these for the sake of profit, not innovation.
There is a UK specific chapter of the FFII. We should note, however, that it was the European Council that had originally pushed the Software Patent Directive through the initial stages of the legislative process despite objections from some member states in March 2005 which perhaps illustrates the level of lobbying by vested interests that had been taking place behind the scenes. Indeed such interests are still very active and a walk through the FFII web site suggests that the software patents issue is far from dead.
For example, the European Patents Litigation Agreement is currently making its way through the tortuous European legislative process and although the EPLA may not explicity mention software patents, in its current form, anti-software-patent groups argue it will lead to the same dysfunctional situation as we now see appearing in other parts of the world where overbroad patents are granted, i.e. where there is weak testing for novelty, technical character and inventive step which should be inherent in the pre patent process.
Germany assumes the presidency of the European Council of Ministers in January 2007 and it is believed that they will use their six month presidency to push for the introduction of a centralized European Patent Court with enforcement powers across EU states. If a European Patent Court does emerge from the EPLA the impact on existing national legislative structures could be considerable. Whatever structures eventually emerge, however, the key issue is the degradation of the patent system which the introduction of software patents can so easily amplify. Rigourous testing for novelty, technical character and inventive step requires expert assessment by patent analysts who really know their business. Unfortunately, as we have seen in other parts of the world there is apparently insufficient expert patent analysts around so we end up with overbroad patents being awarded which simply fertilizes the ground for patent trolls. It would be good to think that concentrating decision making power in a European Patent Court full of expert analysts would improve the situation, but it could also make it much worse by providing a single focus for lobbying by those who see an ever increasing business opportunity in claiming to have ‘invented’ technologies and processes that are not novel nor major inventive steps. The end result is that far from encouraging and rewarding software innovation and invention the patent system concentrates power in those with the financial muscle either to assert rights or to defend themselves against spurious claims.
All of the above appears to suggest a pretty bleak scenario. In an attempt to finish on a more optimistic note, however, it may well be that software patent spats a la Blackboard > Desire2Learn will now make us sufficiently motivated to reflect on the technical and corporate dependencies the HE sector has developed since at least 1999. We may perhaps decide in years to come that this pre-occupation with MLE/VLE that has been the main focus of e-learning so far is just not worth the hassle. Ironically, therefore, the Blackboard attack on Desire2Learn and its assertion to have ‘invented’ pretty basic processes may have done us all an immense favour by highlighting the mess we are likely to get ourselves sucked into should we allow such dependencies to continue. That, of course, is going to take a degree of courage not least by those in the HE sector who, to date, have been the advocates of the corporate MLE/VLE model and who may therefore find it easier not to raise their heads above the parapet by advocating, or explaining, the need to change. I’ve considered the challenges to making such changes of direction in earlier Auricle postings, e.g. Keeping it simple – is it too late? (Auricle 27 July 2005) and E-Learning Frameworks and Tools: Is it too late? – The Director’s Cut (Auricle 15 Sep 2004). I feel that the software patents timebomb now makes the issues I considered in those postings even more pressing.
