Matthew Small and Clare Respond to Bb patent developments

Fri Apr 4 12:20:50 2008 EDT (-0400 GMT)

Campus Technology posted an interview they did with Matthew Small today. It’s very interesting in that it gives insight into his mindset with respect to the patent and he refers frequently to any perceived problem with the patent to be with software patent law itself, not Bb’s patent. It’s a good point, software and business practise patents are a bad idea to begin with!

I’ve met Mr. Small a few times, and blogged about at least two of them (Bb v. SFLC, Sakai, Moglen, rational thinkers, et all., Follow up with the Bb team). The problem I have with him is he’s a bright, reasoned individual who is operating quite logically upon assumptions that I (any many others) simply can’t accept.

The Bb assumption seems to be: one can get away with anything one wants to with a software patent, the only test is tricking the USPTO; we’re surprised you all didn’t know that and we don’t know why you’re trying to stop us. Small argues that the “Obvious to someone trained in the art” test has to be applied to 1998 when they claimed to apply the concept of one user multiple roles to eLearning. He then points to the fact that no other commercial product on the market allowed for it when they got their product to market, thus it must not have been obvious and that they invented it.

Small also concedes that the concept of one user multiple roles was being used in other non-eLearning tools but not in eLearning tools, thus they applied it first and thus invented it.

Again, if you accept that this is the kind of thing that one can be patented, then it is a reasoned argument. My (and many other’s) problem with this is that eLearning does not simply consist of 4 or 5 commercial products. Many tools at universities (including Brock’s) applied this principle on a few of the tools that create the list of 44 items in the Bb patent. I’ve got the patent pinned to my office wall and the words “and then selling it” do not appear — though it does reference existing “legacy network-based systems” that waste a lot of students’ time. I don’t know if that acknowledgement strengthens or weakens the patent, but if you look at the statement over the last two years the answer might be “both”.

Additionally the concept of one user multiple roles was adapted to eLearning (according to the patent in 1998) but since then its been adapted to things like on-line tax software, wikis, blogs, etc. and my Googl’ing of the USPTO site can’t find similar patents.

So sanity appears to prevail. One thing that also wasn’t as obvious in 1998 was how to make your customers revolt against you via the internet — the record industry invented that. There’s one business practise that was always going to be applied in 2006 when Bb actually filed their patent, and that one should have been obvious to them.

Comments are closed.