The UK government is embroiled in legal wrangling over the validity of a patent covering an electronic registration system for schools. Far from settling the dispute, a high court ruling on 17 June prompted both sides to claim victory. The continuing dispute, and contradictory advice from the Department for Education and Skills (DfES), has caused uncertaintly over whether schools themselves could be held liable for infringing on the patented technology.
European Patent (UK) No 0664 061, held by Frontline Technologies, covers "the process of exchanging student data over a wireless network using portable computers and transceivers in an educational environment". It can be applied to a wide range of activities, including wireless electronic pupil registration and attendance management systems.
In November 2002 the DfES weighed into a fight between Bromcom, sister company to Frontline and non-exclusive licencee, and TASC, a rival supplier of wireless systems to schools. Bromcom alleged that TASC's product infringed on the patent license it holds, and promptly took legal action. TASC settled out of court with Frontline, and put up a notice warning customers that they might need a license for the technology. The financial terms of the settlement remain confidential, and a spokesman for the company was reluctant to comment further.
At the time, the DfES was advised by its lawyers that the patent might be invalid, so it wrote to local education authorities, advising them not to "agree to take a licence from Bromcom to use other suppliers' equipment that may fall within the scope of the patent" until the question of the patent's validity had been resolved.
In June 2003, the Department for Education and Skills announced that it had "issued proceedings in the High Court to test the validity of the wireless technology patent". The trial date was set for February 2004.
According to the DfES, the government "substantially" won its case in June this year. The department was able to show prior art existed on one area of the patent, specifically that relating to a computer system using file-sharing architecture at Kingshurst City Technology College in the early 1990s. It now advises schools that they are able to use "any WLAN equipment which is 802.11 standards compliant regardless of the manufacturer or supplier of the school’s MIS without infringing the FTL Patent".
However, the legal battle is not yet concluded. Sources familiar with the dispute question the sense of issuing such categorical advice on an issue which has not been resolved. Indeed, responding to a question in Parliament on 15 October, Charles Clarke, Secretary of State for Education, appeared to distance himself from this advice. Asked whether the liability for deploying systems without licences lay with the schools or with the DfES, Mr. Clarke said that in common with all products and services, schools are liable for their decisions. "Before making such decisions, schools are able to seek detailed advice from their relevant service or product supplier," he said.
Frontline has also claimed victory because the court only upheld part of the DfES' challenge. The judge ruled that unless the patent was amended, it would be revoked, but did allow Frontline to apply to the court to make the changes neccessary for the patent to be upheld.
The government will not say how much it has spent contesting the patent. In a written answer to questions on 8 November, Education Secretary Charles Clarke declined to release the figure, saying that it would be inapparopriate while the costs of the litigation are still being negotiated. He argued that the amount spent is a fraction the potential cost to schools, and added that his department was challenging the scope of the proposed amendment.
Bromcom declined to comment beyond the official Frontline statement while the legal wranglings continue. ®