Those of you who attended the Sakai conference in Atlanta might recognize that quote. It’s attributable to Eben Moglen (SFLC), uttered during the “lunch discussion” with Matthew Small (Blackboard). “These are the data,” is a quote I’ve used countless times in the past 16 months. I’ll explain in a moment.

So, fast-forward, and we see posts from Michael Feldstein on the initial invalidation of all 44 claims and Blackboard’s response. The latter post (and Bb’s statement) is specifically about the percentages of patents that are upheld, invalidated, or altered under reexamination. This is the exact context of Dr. Moglen’s original quote. He presented some hard figures and summed up with those ringing words.

I’m not going to beat up on Blackboard – they’re looking at the rules and playing the game. I completely disagree with software patents, but they’re still allowed in the rulebook, so I can’t blame them for filing before someone else did. Indeed, the applications were filed in 1999 and 2000. It was a different frontier with respect to the Internet, Free Software, and software patents then (see LZW, Unisys, SCO).

Personally, I thought it was pretty bad karma to file a press release of a patent and lawsuit on the same day, turning the red lights in people’s minds into white hot light on the detailed claims. But then again, I’m not on their strategy team. It’s just too bad that we’re tying up all the energy, time, and tax dollars, bickering over how we play in the same edusandbox and who gets how big a slice.

Anyway, there are 44 patent claims. Of the 10 issues set forth in the reexamination request, the rejections of 6 were adopted with modification, those of one without modification, and those of 3 were not adopted. The union of all adopted rejections deems that all of the claims set forth in United States Patent 6,988,138 are unpatentable. These are the data. -NB

You can download the audio of the lunch session from the Sakai Confluence page. There is also a transcript from Jim Farmer.

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29 March 2008