According to the latest entry on D2L’s patent blog, D2L has payed the court judgment plus post-judgment interest in full and has also migrated all customers to version 8.3 of their software, which they claim does not infringe on the patent. There’s been some FUD flying around about whether D2L could handle the financial impact of the judgment. Well, they just did handle it. End of discussion.
Author: Michael Feldstein
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Opening Up the IMS
In general, I am a fan of the IMS. I believe that we need interoperability standards in education, and I think that the IMS’s recent work such as the released Common Cartridge standard, the in-progress Enterprise Services v2 (now called Learning Information Services, or LIS) and Learning Tool Interoperability standards, and the foundational requirements work happening within the Learning Technology Advisory Council (LTAC) are going to prove to be important drivers of learning impact over the next several years. That said, I am also highly sympathetic to complaints about the IMS’s policy of members-only access to specifications under development. There’s something fundamentally contradictory about open standards being developed behind closed doors.
Over the past 18 months, I have had the privilege of participating in the IMS work on a regular basis. During that time, I have mostly kept my mouth shut about the openness issue. Out of respect for the staff and the board, I wanted to experience the process from the inside and see how it works today before advocating change. But at the Learning Impact conference last month, I decided to speak out.
I didn’t mince words. At one point I said, “I know plenty of people in the ed tech community–good people, exactly the kind of people that we need to participate–who think that the IMS is some kind of secret society.” I got a fair few “amens” from other participants, both publicly and privately. To his credit, IMS CEO Rob Abel responded positively and non-defensively. (I expected nothing less.) In the spirit of that dialog, I am going to articulate my case for the further opening of the IMS specification development process here.
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Blackboard and Desire2Learn Fight Over Venue for Next Round
*Sigh.* At some point I hope the world–and the Blackboard case–will slow down enough so that I’ll actually have time to blog about something else.
Here’s the latest from D2L’s patent blog:
April, 2008 – Matthew Small, Blackboard’s Chief Legal Officer:
“Certainly we believe the reexamination process is a healthy process. It serves to generally strengthen patents, and this case is no different.”http://www.thejournal.com/articles/22358
May, 2008 – Blackboard’s filing with the Patent & Trademark Office:
“Patent Owner Blackboard Inc. (“Blackboard”) hereby petitions the Office to suspend the inter partes reexamination between Blackboard and Third Party Requester Desire2Learn Inc. . . .”
Petition To Suspend Inter Partes Reexamination Under 35 U.S.C 6314(C)
Yesterday, despite Blackboard’s prior assertions (including on its own website) about welcoming the re-examination of their patent, Blackboard has now requested that the Patent and Trademark Office stop its re-examination of the patent. We will leave it to others to speculate about the reasons for Blackboard’s change of heart.
Note: we have not yet received the exhibits that the filing to which the filing refers. When we do receive them, we will post them. (As an aside, we’re still awaiting the exhibits to Blackboard’s response to the PTO’s rejection – they, too, will be posted upon receipt.)
On another note, and consistent with our position since the beginning of this litigation, yesterday we filed an Emergency Motion To Stay Proceedings Pending Reexamination Or Alternatively, Motion To Stay Judgment Pending Appeal with the United States Court of Appeals for the Federal Circuit. That filing, as well as the numerous exhibits and related papers that accompanied it, can be found here.
It looks like D2L wants to pursue this through the USPTO while Blackboard wants to go through the US Court of Appeals. Each is trying to petition one body or other to suspend what could be duplicative processes.
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An Update on Blackboard Calling Desire2Learn Customers
A while ago, I noted D2L’s claim that Blackboard General Counsel Matt Small (whose title either is going to be changed or has already been changed to “Chief Business Officer”) was calling D2L customers and encouraging them to switch over. I requested that readers contact me with any information that they have. I got a few responses. The first was from Matt Small. As you might imagine, he has a different account of what happened. I didn’t speak to Matt directly, but he sent me an email with his side of the story:
The summarized version is that several D2L client general counsels called me to ask what would happen if the court holds D2L in contempt for violating the injunction. I told them that Bb never wants to see a school disrupted, that there are options in the market and that Bb would always be here to serve as a safety net if the schools prefer us. The point of my message was to ease any fear that schools might be caught in the crossfire between Bb and D2L. Each GC [General Counsel] was very appreciative of our commitment and thanked us. I reached out to a few other GC’s myself where I thought they would appreciate that information, some of which are also Bb clients. D2L’s blog is completely false–my intent was neither FUD nor sales. It was simply a courtesy call to allay fears. Please feel free to share this info as you feel appropriate.
I also heard some of the same rumors that Barry Dahl cites–i.e., that at least a couple of D2L customers are concerned about the continuing uncertainty surrounding the outcome of the trial as it affects them. But I’ve held off posting about them because the information I’ve been getting from the universities themselves has been mostly sketchy, third-hand, and/or highly off-the-record.
Until now, that is. A gentleman who is in-house counsel for one of D2L’s major customers was kind enough to speak with me about the conversation that he had with Matt Small and to share his own assessment of the overall legal situation, on the condition that I do not name him or his university. (For simplicity’s sake, I’ll refer to him as “John” for the purposes of this post.) In addition to being a lawyer at a school that licenses both D2L and Blackboard, John has a background working for software companies and is well versed in the legal and business issues surrounding software patents. So his comments should be taken as those of an expert.
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I Want More
The EDUCAUSE webinar on edupatents today was very good. (The archived event is available.) James Hilton, University of Virginia’s CIO, did a great job of laying out the fundamental conflict between the academic endeavor and the United States’ obsession with ideas as property–an idea that has infused academia through technology transfer departments among many other avenues. Bruce Wieder, an intellectual property lawyer at Dow Lohnes PLLC, gave a solid primer on patent law. I wish we had had somebody like him available much earlier in the process, when none of us knew anything about patents.
I have some minor quibbles. For example, neither speaker seemed to know about the Digital Vending Services International patent. But my biggest concern is that the conversation didn’t go far enough. Having described the epic clash between freedom of ideas and ownership of ideas with great clarity, neither speaker made any real effort to explore how academia might move forward in grappling with this problem. Maybe that’s a lot to ask of one webinar. But EDUCAUSE has shown some admirable leadership in the edupatent area and I think they are in an ideal position foster this conversation. In order to do so, they’re going to have to move beyond Blackboard and really help universities to take a collective hard look in the mirror.
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Oracle's Work with Fluid on Accessibility
Although I try to maintain separation between e-Literate, which is my personal blog, and my life as an Oracle employee, I don’t mind posting about my employer every now and then when I think that we’re doing good work that my readers might want to know about. And this is something I’m particularly happy about.
As regular readers know, I’m pretty high on the Fluid project, which is improving accessibility and usability in an increasingly distributed world of online learning environments. My colleague Linda Feng happens to be friends with George Hackman, who is Senior Director, Operations User Experience at Oracle. So the three of us have been looking for ways that Oracle can support Fluid in their important work. It’s been a bit slow, partly because of some bureaucratic/policy hurdles that we hit early on but mostly because all parties involved (both at Oracle and on Fluid) have day jobs, which subjects this sort of collaboration to all kinds of personal bandwidth limitations.
At any rate, George just let us know that Amy Chen, a Senior Usability Engineer working in his group, has just completed what I think is our first contribution (not of code, but of work). There was a question about how to support accessibility for drag-and-drop operations in AJAX toolkits. As you might imagine, we have folks within Oracle who are both experts in accessibility and users of assistive technologies themselves. Amy has been consulting with them and giving the Fluid team feedback on this question. I understand that a follow-up meeting is planned.
Amy has characterized this work as a “small task,” but I am delighted with the precedent it sets. I am hopeful that we’ll see a lot more good work for higher education coming out of this collaboration in the future.
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Blackboard's Response to the USPTO Office Action
In case you haven’t seen it yet, Blackboard has responded to the non-final invalidation of their patent by the USPTO. I’ve only had time to scan it quickly, but here are my preliminary observations.
First, Blackboard has added a bunch of new dependent claims, bringing the total up to 57. (There’s a Steve Martin joke in here somewhere.) It is within the rights of the patent holder to modify or add claims during a challenge under certain conditions (e.g., it can’t add new independent claims that would broaden the scope of the patent.) I haven’t looked at these new claims (and won’t look at them), but in general, patent holders can take advantage of the re-examination process to actually strengthen their patents. It would appear that Blackboard is attempting to do so here.
Second, one of Blackboard’s main arguments appears to be that none of the prior art submitted shows a system in which a person can log on once and simultaneously be a teacher in one class and a student in another with different access permissions in each case. If you have to log in separately to access each role, or if you can have multiple roles but these roles don’t affect your access privileges, then you don’t have prior art (they claim). I am not going to have time to go back through the prior art documentation in the D2L and SFLC re-exam appendices, but if you have the time and inclination to look, all documentation can be found here. In addition to the question of whether the prior art does or does not point to a system with these characteristics, there is also the question of whether the USPTO accepts Blackboard’s characterization of what the patent says in the first place.