On March 25, the U.S. Patent & Trademark Office issued its Non-Final Action on the re-examination of the Blackboard Patent. We are studying the document, found here, but in short, the PTO has rejected all 44 of Blackboard’s claims. We caution that this is a NON-final action; both Blackboard and Desire2Learn will have an opportunity to comment before a final action will issue, and after that, the decision will be subject to appeals.
This decision actually should have come before the trial verdict but was held up because the USPTO had to decide what to do about the separate filings from D2L and SFLC. Now, in addition to the fact that Blackboard will be able to argue against the ruling with the USPTO, there are a number of questions regarding how this affects the court case. Will the damages finding still stand? Will the USPTO ruling render moot D2L’s post-trial motion before the judge regarding invalidity? If not, will it imact that ruling? What happens to the issues of royalties and injunction going forward? I think that I know the answers to some of these questions but don’t want to post anything until I have some more authoritative information.