Jeff Boerer has a good find on this. It looks like Blackboard has filed a complaint with the U.S. International Trade Commission aleging that Desire2Learn is illegally importing software into the United States that violates a U.S. patent. I don’t know anything more than what Jeff has posted, so I recommend you go to his blog and read his post.
Author: Michael Feldstein
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EduPatent Fight As Complicated As Ever
As you might imagine, Blackboard and Desire2Learn have somewhat different interpretations of what the recent USPTO ruling means in the bigger picture. And there certainly is plenty of room for interpretation, given the complexity of the situation. There are now no less than three separate, parallel, but not entirely unrelated fronts in the legal war between Blackboard and Desire2Learn. There are many possible permutations of outcomes based on how each is resolved and in which order.
Fasten your seatbelts, folks. This is getting even more complicated. I have spoken with a few experts over the past week to get some perspective. None of them wanted to be quoted on the record, and most preferred to remain anonymous. (I can at least acknowledge and thank Peter Zura for being very generous with his time and providing me with some great background information on patent law.) What follows here is my own, non-lawyer’s interpretation of the sometimes conflicting input I got from these experts. I don’t promise that I’ve gotten every nuance right here, but I’ll do my best to lay out the basics.
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Blackboard Patent Invalidated. Again.
Update: Turns out I was incorrect about the relationship between the old patent and the new one. The ruling may (or may not) have some influence on the suit over the new patent, but it is not determinative.
This is getting very complicated. I’ll try to get a post up about at least some of the many permutations of possible outcomes soon.
Some big news on the edupatent front:
Today, the U.S. Patent and Trademark Office posted its Action Closing Prosecution (nonfinal). We’re still studying the lengthy document, but all 57 claims of Blackboard’s 6,988,138 patent have been rejected – the original 44, plus the ones they attempted to add during the re-examination process.
Here’s the PTO document about Actions Closing Prosecution.
The USPTO has now ruled against the patent twice. They made a preliminary judgment of invalidity, they gave Blackboard a chance to rebut that judgment, and then they said again with today’s announcement that they still think the patent is invalid. Blackboard now has 30 days to make one final attempt at rebuttal. After that, Desire2Learn has 30 days to respond to Blackboard’s response, at which point the USPTO will issue a final judgment. Assuming that the third judgment goes the same way as the first two, then the patent will be officially, legally invalidated. Blackboard would be able to file for an appeal in the courts, but they would be fighting the USPTO, not Desire2Learn.
But there may be even more here. If I understand this announcement correctly, this invalidation applies not only to the original patent but also to the continuation patent that Blackboard was recently issued and over which they have initiated a new lawsuit against Desire2Learn. (I’m seeking confirmation on this point and will update this post when I find out more; it’s a bit hard for me to parse since I’m legally constrained from looking at the documents directly.) If so, then this ruling is very significant indeed. It could be the beginning of the end for this whole chapter in the history of educational technology—after Blackboard spent many millions of shareholder dollars pursuing the litigation while failing to put Desire2Learn out of business, failing to prevent Desire2Learn from acquiring new customers and developing new versions of their products, and creating a popular backlash that could have a lasting effect on the Blackboard brand. (The Facebook Million$Mission group has 347 members after just a couple of weeks of existence and appears to be growing daily.)
At this point, Blackboard might be wise to take up Desire2Learn on their Million$Mission quickly before D2L takes it off the table. It may be their last opportunity to extract money out of their rival and save some face in what appears to be turning into a financial fiasco for the company.
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Blackboard Wastes Money on Worthless Patent
photo credit: Great Beyond No, not that one.
As we reported here about a year ago, Blackboard has been sued for patent infringement. A company called TechRadium asserts that Blackboard’s Connect product, which they acquired with the purchase of NTI, violate’s TechRadium’s patent regarding mass emergency notification systems. (I don’t know the details of the patents because to look at them would place my employer at legal risk.) Since then, we haven’t heard any news.
Until today, that is. I just got a press release from TechRadium’s lawyers (O’Quinn Law Firm) which reads, in part,
Shortly after the acquisition of NTI by Blackboard, TechRadium sued Blackboard for infringing several of its mass notification patents. In response to that lawsuit, Blackboard, apparently believing a good offense is the best defense, spent $17 million to purchase a patent of its own and, based upon its interpretation of the patent language, filed an infringement lawsuit against TechRadium. As part of that lawsuit Blackboard requested a preliminary injunction.
TechRadium’s CIO, Darren Ross, contended the Blackboard patent describes “obsolete technology that no competent IT administrator would implement,” and that its IRIS product did not infringe. The Court, not only denied Blackboard’s request for preliminary injunction, it largely agreed with TechRadium’s interpretation of the patent language, and stated, “Based upon my likely claim construction, I do not find that Blackboard has demonstrated in this hearing a likelihood of success on the merits.”
TechRadium’s attorney, Shawn Staples of the O’Quinn Law Firm, added, “based upon the Judge’s initial interpretation of the patent language, TechRadium is well outside the bounds of infringing on Blackboard’s patent, and we now look forward to addressing Blackboard’s infringement of TechRadium’s patents.”
So, according to TechRadium’s version of the story, Blackboard spent $17 million to purchase a patent that may, in the end, do them no good in defending against TechRadium’s patent infringement suit. To be sure, this is just a ruling on a priliminary injunction. It sounds like the claim construction phase is still ahead, and the judge could still rule their way at that point. But still, when you put this together with the D2L suit, Blackboard must have spent something in the neighborhood of $25 million purchasing and litigating patents over the past few years. You have to wonder how they imagine this is going to pay for itself.
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Imagining a WeLE
A while back, I noted with some interest Michael Korcuska’s screencast showing off a prototype of some functionality planned for Sakai 3. Some recent related conversation has come up on the Sakai listservs regarding the possibility of including wiki-like capabilities as core functionality of Sakai 3 and how this might overlap with and complement the capabilities in the screencast. I will argue here that, if combined carefully and enhanced with one more idea that has been floating around for Sakai 3, we end up with something quite new and interesting in the world of learning environments. I propose calling this new and interesting something a “Wiki’ed Learning Environment”, or WeLE.
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Nice Plug for the Oracle Academic Enterprise White Paper
Thanks to Sakai Foundation Executive Director Michael Korcuska for providing a nice review (with some thoughtful analysis good suggestions) of my team’s (relatively) new white paper.