I love to write about the bright side of learning, highlighting innovation and success in the field. This month’s column turns to the darker side of learning, though, from patents to legal counsel confusion on discovery, and it closes with a “learning and pandemic” perspective.
Patent Flaws and Threats
The U.S. Patent Office has made some serious errors in awarding business process patents over the past six years. It has awarded patents on many aspects of learning, feedback, assessment and even the logistics of student-teacher interactions. These patents have been awarded to operating companies with existing learning systems, as well as “patent trolls”: companies with clever patent lawyers and no real systems or technologies. There are loads of “prior art” evidence that the patent claims were not new, yet there is little public involvement or discovery in the flawed approval process.
The result? Major LMS companies have been forced to settle suits to license technology that they didn’t use because the cost of licensing is easier to swallow than the cost of long litigation or possible lost lawsuits. I was an unpaid witness in one of these cases and was shocked to see how flimsy the claims were, only to see them finalized months later through economic settlements.
Now Blackboard, an LMS company in the higher education field, has been awarded a patent on many aspects of e-learning processes. It immediately filed suit against a competitor.
Patenting real innovations in systems and technology makes sense, yet patents awarded for these “processes” are ridiculous.
Legal Office in Learning
Your legal counsel might be one of the most interesting players in the amount and focus of your organization’s future e-learning. Many corporate counsels view e-learning as a perfect solution for both compliance and settlement purposes. As government agencies add regulations, corporate lawyers are turning to e-learning to add “easy” documented protection: “Let’s build a few modules and quickly have every employee take them. We can use our LMS to track the training, and it will keep us safe.”
Smart thinking if you use it occasionally, but some organizations are drowning in law office-driven e-learning mandates. The challenge? They compete with performance and development training time availability, and they often are deeply de-motivating for learners.
A recent evolution is for lawyers to stipulate mandated e-learning training for all employees as part of settling lawsuits: “We’ll pay this amount of money and agree to train everyone on that risk.” It is time for the learning and legal industry to have an honest conversation about the sane and effective use of learning as a legal protection and remedy.
Discovery of Collaboration
“Discoverability” is a term I have been hearing, often in discussion with CLOs. Organizations, particularly in highly regulated industries, have an obligation to keep records of training programs. In the past, this meant training agendas and LMS outputs. Now digital collaboration is seen as potentially being covered by “discoverability.” As a result, many organizations are concerned about the use of instant messaging, online Web conferences and even in-class training. The extreme position is that organizations should capture all content delivered to learners in case of a future lawsuit. Imagine teaching a class on diversity in which one wants to solicit honest feedback from participants about their views of experiences, except now it must be captured. There need to be a few zones of “evaporative” dialogue, in which learners can talk off the record. Let’s not push “discoverability” too far.
Let’s end this column with a depressing yet necessary thought: pandemic learning. How ready is your organization for major disruption on the scale of a pandemic? Many organizations, including IBM, have added a pandemic officer to plan for continuity, including learning and cross-training. Learning can play a key role in organizations’ continuity, and CLOs should step up to leadership roles in this arena.
I promise a more cheery column next month.
Elliott Masie is the CEO of The MASIE Center’s Learning Consortium. He can be reached at firstname.lastname@example.org.
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