Red Hat settled a patent dispute this week that had potentially wide reaching impact to the open source community. Matt Asay points out nicely that Red Hat has demonstrated the open-source way to quash patent lawsuits. 

"Typically when a company settles a patent lawsuit, it focuses on
getting safety for itself," said Rob Tiller, Vice President and
Assistant General Counsel, IP [Red Hat]. "But that was not enough for
us, we wanted broad provisions that covered our customers, who place
trust in us, and the open source community, whose considerable efforts
benefit our business."

This particular suit hits close to home as Sakai and Kuali, two open source projects that mean a lot to me, both use Hibernate, which was the target of this particular attack.

I've verified my interpretation with several people (including real attorneys) and Red Hat's settlement seems to cover Sakai and Kuali. Red Hat's approach to this makes good business sense for them but still we shouldn't take it for granted. It only makes good business sense for them because they truly understand the value of their open source ecosystem and because they've adopted the right set of values to be successful in that ecosystem. Thank you Red Hat from the Sakai and Kuali communities

One troubling thing about all of this is the ongoing threat patents pose to the software world. One article commenting on the Red Hat settlement applaud's Red Hat but points out that "pointed out an opinion that this is an example of patent trolls getting smarter. (By the way it's interesting that the article lumps Blackboard into the patent troll category). The article points out that  "what we're really seeing here is a skillful example of patent gamesmanship by the troll."

Wonderful news this morning...

On March 25, the U.S. Patent & Trademark Office issued its Non-Final Action on the re-examination of the Blackboard Patent. We are studying the document, found here, but in short, the PTO has rejected all 44 of Blackboard’s claims. We caution that this is a NON-final action; both Blackboard and Desire2Learn will have an opportunity to comment before a final action will issue, and after that, the decision will be subject to appeals.

I spent this past week at the OSBC conference in San Francisco where intellectual property issues and discussions about Microsoft's patent position relative to their relationship with the open source community were hot topics. This news is a great step forward for the education community and for the world of software patents in general. Thanks to the SFLC and to the education community for all the thoughtful responses and documentation that have helped the USPTO come to this initial determination.

I'm here at Sun's Education Research Community Conference today in San Francisco where the theme of the conference is "The Power of Communities." Throughout the event so far participants have been engaged in dialog about the various aspects of community and how the value of participation and contribution in various communities is realized by various stakeholders. Sun and other corporate participants discussed many ways in which participation in open source communities has been a driver of innovation and a closer more collaborative connection to their customers. Students spoke about the value of learning using open source technologies and the value of participating in open source communities. Educators from a variety of institutions all over the world shared ways that open source software and participation in open communities is giving them new tools and new ways to engage learners.

At the opening session Joe Hartley presented an interesting idea he referred to as the personal community map. See photo below. Joe visually mapped his own involvement in various communities based on his level of commitment to the community and the corresponding value to him and to the community. It's an interesting way to think about it.

Yesterday afternoon during one of the general sessions I peeked at my iPhone to see what was going on and I scanned the headlines in one of my Google alerts. Just below an article about Sun's completion of the MySQL acquisition was another article in the steady stream of dismay at Blackboard's "victory" over Desire2Learn.

The event here in San Francisco really highlights for me the stark contrast between a company like Sun and a company like Blackboard. Sun's is clearly aligned with the values of the education community. Today's dialog has been an open, participatory dialog between the people of Sun, their customers, their partners, and even student 'ambassadors.' During one of the sessions someone asked a question about how Sun would recoup the investment in MySQL and part of the response was the transformative value to Sun of the MySQL community culture. This is a company clearly interested in creating business value in harmony with their various communities... including the education community.

Blackboard, on the other hand, is a company who's actions are simply misaligned with the values of the education community. They are a bad actor who's aggressive and offensive use of a bad software patent is stifling a space that needs competition and the innovation capacity of communities like Sakai and Moodle. The recent verdict awarded Blackboard $3.1M and the right to request an injunction preventing Desire2Learn from selling it's product in the United States, which they've apparently done. The verdict is disappointing but predictable given the patent's current standing with the USPTO and the track record of the East Texas court. I'll be very surprised if the patent holds up to the scrutiny of the pending re-examination. The most disturbing thing about this whole mess to me is the waste. Millions of dollars of the education community's license fees paid to Blackboard and Desire2Learn aren't going into R&D, they aren't being used to innovate and provide better products or services, the money is being used to 'cheat the system' to achieve one goal: Total domination of the eLearning market at all cost. How long will the education community continue to fund their behavior? I empathize with customers of Blackboard's who feel locked in. Fortunately there are now alternatives like Sakai and Moodle that have become attractive alternatives. For many of Blackboard's customers who are facing a migration anyway, especially the WebCT customers, the timing might be just right to get on a better path. A path that leverages the "power of communities" to further the impact of technology in scholarly endeavors and improve access to education.

Other key resources to learn more about the verdict, the patent, and the pending re-examinations:
Blackboard Wins Patent-Infringement Case Against Rival Courseware Provider, The Chronicle

Our 'official response' from the Sakai Foundation on Michael Korcuska's blog

Michael Feldstein's blog

Steven Down's summary of others' comments

Yahoo Pipe for Bb patent news

Local software firm loses patent suit, The Record