Monday, August 28, 2006

The Lewis Carroll Patent Racket

'Now the cleverest thing of the sort that I ever did,' he went on after a pause, 'was inventing a new pudding during the meat-course.'

'In time to have it cooked for the next course?' said Alice. 'Well, not the NEXT course,' the Knight said in a slow thoughtful tone: 'no, certainly not the next COURSE.'

'Then it would have to be the next day. I suppose you wouldn't have two pudding-courses in one dinner?'

'Well, not the NEXT day,' the Knight repeated as before: 'not the next DAY. In fact,' he went on, holding his head down, and his voice getting lower and lower, 'I don't believe that pudding ever WAS cooked! In fact, I don't believe that pudding ever WILL be cooked! And yet it was a very clever pudding to invent.'

'What did you mean it to be made of?' Alice asked, hoping to cheer him up, for the poor Knight seemed quite low-spirited about it.

'It began with blotting paper,' the Knight answered with a groan.

'That wouldn't be very nice, I'm afraid -- '

'Not very nice ALONE,' he interrupted, quite eagerly: 'but you've no idea what a difference it makes mixing it with other things -- such as gunpowder and sealing-wax. And here I must leave you.' They had just come to the end of the wood.

Alice could only look puzzled: she was thinking of the pudding.

- Lewis Carroll, Through the Looking Glass

In my many years as a software engineer I have had the misfortune of bearing witness to a United States Patent system that increasingly has less to do with protecting true intellectual property and has more and more become the first refuge of scoundrels.

The software revolution is largely responsible. The volume of requests for patents has overwhelmed everyone's ability to distinguish merit of such award. The system is broken and easily corrupted by overwhelming financial powerbrokers who manipulate and distort the marketplace. The patent process today may as well be a government sanctioned criminal enterprise.

As an educator and innovator who has always offered ideas into the public domain for discussion, refinement, and enrichment by any audience that will listen I recoil in horror more and more often as patents are awarded for ever more dubious reasons. So with all that in mind, here's the news story that makes me recoil once again;

Who invented e-learning computing? by AP, CNN
Every day, millions of students taking online college courses act in much the same way as their bricks-and-mortar counterparts. After logging on, they move from course to course and do things like submit work in virtual drop boxes and view posted grades -- all from a program running on a PC.

It may seem self-evident that virtual classrooms should closely resemble real ones. But a major education software company contends it wasn't always so obvious. And now, in a move that has shaken up the e-learning community, Blackboard Inc. has been awarded a patent establishing its claims to some of the basic features of the software that powers online education.

The patent, awarded to the Washington, D.C.-based company in January but announced last month, has prompted an angry backlash from the academic computing community, which is fighting back in techie fashion -- through online petitions and in a sprawling Wikipedia entry that helps make its case.

Critics say the patent claims nothing less than Blackboard's ownership of the very idea of e-learning. If allowed to stand, they say, it could quash the cooperation between academia and the private sector that has characterized e-learning for years and explains why virtual classrooms are so much better than they used to be.

The patent is "is antithetical to the way that academia makes progress," said Michael Feldstein, assistant director of the State University of New York's online learning network and one of the bloggers who has criticized the company.

Blackboard, which recently became the dominant company in the field by acquiring rival WebCT, says the critics misunderstand what the patent claims. But the company does say it must protect its $100 million investment in the technology. The day the patent was announced, Blackboard sued rival Desire2Learn for infringement and is seeking royalties.

"It just wouldn't be a level playing field if someone could come onto the scene tomorrow, copy everything that Blackboard and WebCT have done and call it their own," said Blackboard general counsel Matthew Small.

Actually the lawyer is wrong on a number of counts. First he presumes that companies working in this domain for years have copied or even heard of his client.

But beyond that, unless someone is selling warez - that is a carbon-copy product re-engineered from his client's original work - the claim seems to be that all innovation in virtual education somehow belongs to his client.

The article continues;

Blackboard's patent doesn't refer to any device or even specific software code. Rather, it describes the basic framework of an LMS. In short, Blackboard says what it invented isn't learning tools like drop boxes, but the idea of putting such tools together in one big, scalable system across a university.

"Our developers sat down and said 'college IT departments are having a lot of trouble managing all these disparate Web sites from each class. How can we turn this into one computer program that manages all of the classes?"' Small said. "That was a leap."

Critics say it was a tiny hop at most.

In software engineering there are numerous methodologies [as there are in education] to implement logic and organizational process. Now, if Blackboard is saying that the traditional public school process can only be implemented exclusively by their software then I think the patent office is perpetuating a fraudulent claim.

Software engineering routinely is used to re-implement existing business and social processes. The perfunctory and bureaucratic legacy of assigning homework, grades, reports and so on can hardly be considered invention or original thought. The fact that disparate software programs would converge to make a coherent whole of several processes is not compelling either - this swiss-army knife metaphor is nothing new.

If this company's technology suite were worthwhile the marketplace is the place to prove that point, not the patent office. And as a critic, let me say I disagree that the so-called innovation was a "leap".

The idea of converging small software tools is the very basis of UNIX, an operating system common to Universities that established the idea that small tools and processes could be added to each other to create a greater whole.

The ubiquitous nature of the Windows operating sytem which combines spreadsheets, word processors, and so on is another example of "e-Learning" convergence. In my opinion, the patent and claim are absurd.


Kari Chisholm said...

One weird thing... You can't patent a recipe for a food item.

Seems to me that a recipe is basically the same thing as programming code.

If I can't patent my mojito (which everyone says is the best ever) how come Amazon can patent "one-click ordering" (which is just a basic link like any other.)

Frank Krasicki said...


I'm guessing that if you had lots of dollars, a politician in your hip pocket, and a lobbyist in the other pocket, you'd be able to patent chocolate chip cookies these days.

You are correct in saying that recipes are very much like programming code - it is a set of instructions. Certain software algorithms are patentable, say karisCookieCutting algorithm that saves wasted dough on a cookie assembly line.

However, what so many companies do [because they can get away with it] is that they patent things like mixing chocolate chip cookies with flour and water is a process they claim to have invented because a robotic arm mixes the raw materials.

The patent is granted using techno-robotic gobbledigook vernaculars and the patent is so vague that anyone mixing anything with robotic arms [or maybe just a spoon]is intimidated into paying off the patent holder rather than get hung up in a court system where money talks louder than justice and judicial procedure can bankrupt you by delaying your market dynamics.

Based on what I've read that seems to be the case here. The exercise of school dynamics that already has been automated in numerous ways is suddenly prevented from being integrated (like every symbiotic software suite before it) because of this patent. Quite frankly, it's disturbing for its sheer audacity.

The effect of these highly contentious patents is that for example, in education, all innovation in online learning will become suspect and the public and our country is denied a healthy competitive environment. They may have just as well patented the process of breathing while using a computer. The patent system needs reform and serious constraint. It appears to granting a monopoly on software used for online learning exercises.

I think the best way to respond to such patents is to stop using the product line. It sends precisely the message that this company needs to hear and that is, compete on the merit of your product rather than on unwelcome monopoly behavior.

On a final note, the Amazon patent is not quite as simple as you indicate. One-click ordering is not just another link but it is little more than a heuristic for activating point-of-sale checkout to a key. Such "macros" existed in spreadsheets, cash registers, and even calculators.

To add insult to injury, the patent, again is not constrained to Amazon's checkout algorithm but all such checkout algorithms using a single key.

When patents are reduced to constructing legal obstacles to competion instead of rewarding innovation that benefits society at large, I think the patent process has gone astray.

I think Jeff Bezos patents these things in self-defense rather than any intellectual merit.

This patent activity is also the stage for a global feeding frenzy by software companies who want to force the virgin markets of India and China and elsewhere to pay royalties for "inventions" that are strictly legal fabulations. The monetary stakes are huge for legitimate and illegitimate intellectual marketplace claims.

Big Brother has evolved into an extortion racket that cares less about spying on people than on owning and controlling the field of ideas and discussion.

I object so strenuously because so many people in education give of themselves to freely discuss technology innovation in the classroom that it is criminal for the government to allow lurkers to submit patent applications behind our backs to claim they "invented" the subject matter. This is government gone rabid.

Thanks for reading and writing.

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