Some Court Documents

Well, it’s later than we expected, but we did finally get a copy of the jury questionnaire as well as Blackboard’s motion for prejudgment interest. (Both of these were provided by instructional media + magic and acquired from public sources.) And there are a few interesting details.

Update: At the request of Blackboard’s legal counsel, we have removed the link to the motion for pre-judgment interest.

Later Update: A link to the redacted version of the motion has been added back. In answer to some of the questions that I’ve been getting, the reason that Blackboard requested that the document be taken down in the first place is that there was a clerical error in which Exhibit D (referenced in the post below) should have been submitted under seal since it contained D2L’s client list. (Both companies have a right to keep their client lists confidential, and the customers of both companies have the right not to publicize which platform they use.) Blackboard’s legal counsel corrected the error through official channels and asked that we take down the part of the document that shouldn’t have been released in the first place. No threats were made. After thinking about it a bit and seeking a second opinion, I came to the conclusion that it was a reasonable request and took appropriate action. With Jim’s help, I got a copy of the filing minus Exhibit D and reposted it as soon as I had the chance.
As to the question of why the instructional media + magic web site is down, it is undergoing maintenance for unrelated reasons.

The jury questionnaire was a little less detailed than I had hoped (never having seen a jury questionnaire before), but a few things jumped out:

• Blackboard requested $15,455,375 in damages but got $2,500,000 instead–an 83.8% reduction. They requested $1,635,232 in royalties on revenues of $6,540,929 (representing 25% of revenues) but got $630,00 (representing 9.63% of revenues). It’s not entirely clear how the jury arrived at these numbers, but it does look like they may have been doing some relatively sophisticated calculations about (a) the probability that Blackboard would have made a sale if D2L hadn’t been in the picture and (b) the value of the infringing feature.
• D2L claimed to have implemented a work-around that would have made them non-infringing but the jury didn’t accept the argument. One of the arguments all along has been over how broad Blackboard’s patent is. (Blackboard has claimed in their public relations that it is relatively narrow.) If it is difficult to work around, that is one indication that the patent is broad rather than narrow.

However, the motion for prejudgment interest is actually more informative in some ways. Specifically, you’ll want to look at Exhibit D of the PDF (starting on page 28), which lists the revenue that Blackboard claims to have lost. In other words, it lists all the customers D2L has beaten Blackboard out on as well as the contract sizes. It’s quite an impressive list that runs for several pages. Recall that D2L had posted a comment (which they later pulled at the request of Blackboard’s legal team) to the effect that they had uncovered documents during the discovery phase of the trial showing that the reason Blackboard went after them was that D2L was winning too many deals against them. This list certainly is consistent with that claim. And D2L apparently continues to score wins against Blackboard. Two D2L wins that don’t appear on this list because they are too new are Sacramento City College in California and Suffolk County Community College in New York. Both of these are urban community colleges with about 22,000 students each. Both are Blackboard customers that just announced that they are switching to D2L.

Now, Blackboard has apparently asked for an injunction to prevent D2L from making any new sales in the United States. (We haven’t seen the filing for this, but Blackboard General Counsel Mathew Small is reported to have said this in an interview with The Chronicle of Higher Education.) If the judge grants this injunction, then schools like Sacramento City College and Suffolk County Community College will no longer be able to choose D2L. There will be one less option for universities in the United States.