e-Literate

Present is Prologue

Tag: Blackboard-Inc.

  • Wow

    As you may have heard by now, Blackboard has acquired ANGEL. There will be plenty of time for analysis in the days ahead. For now, I just have a personal message.

    To my friends at ANGEL, I wish you well. You all have done great work advancing the causes of interoperability and ease of use, and in providing top-notch customer service. I fervently hope that this acquisition will give you all opportunities to continue your great work.

    To my friends at Blackboard (and yes, I do have friends at Blackboard), I hope that you gain all that ANGEL has to offer. In addition to some great colleagues, you are getting a company with a reputation for leading the charge on open standards, supporting independent open source projects, and being superb partners and community members.

  • EduPatent Updates

    Sigh
    photo credit: wandrerstefan

    As others have already noted, Desire2Learn has updated their patent info blog with a smorgasbord of new information. (Frustratingly, the posts on the blogs don’t seem to have permalinks. Except when they do. Ugh.) Anyway, you can go to their blog and look at the April 29th entry for the details, but here are the highlights from my perspective:

    • With Blackboard’s new Canadian patent infringement suit, we’re going to get a view into whether other countries have less insane legal systems for dealing with intellectual property than we do. It should be interesting. D2L provides some early clues in this direction, explaining that the process, at least for the initial trial, is more streamlined and less expensive.
    • Blackboard has filed for a 30-day extension to return its arguments to the USPTO regarding the non-final action invalidating their (original) patent. D2L alleges that this is a stalling tactic, which makes sense, given that the Federal Circuit court could rule any time now, and that a positive ruling there first could head off the anticipated negative ruling in the USPTO.
    • D2L also alleges that Blackboard has a pattern of launching a new legal assault within days of having a ruling go against them. Again, this makes sense as a possible legal strategy. If Blackboard’s goal is to keep this thing alive in the courts until the bitter end, they they would have a new attack queued up and ready to go as soon as the old one runs out of gas.
    • D2L mentions that they are considering filing a new re-examination. It’s not clear if this would be against the original patent or the continuation patent. If the former, it means that they have uncovered new prior art. Under the rules of an inter partes challenge (which is the kind of patent challenge that D2L filed), they were legally required to disclose all prior art they were aware of at the time of filing. However, if it’s against the continuation patent, things get murkier. Blackboard would have been legally required to put all the prior art being asserted against the old patent in their filing for the new one. You would think that would innoculate them against the old prior art, but that’s not necessarily true. It depends on how much written analysis the patent examiner gave to the prior art. If it was essentially rubber stamped, then D2L (or some other party) could go back to the USPTO and assert that the patent examiner failed to consider the prior art in certain combinations. At any rate, it will be interesting to see if D2L does, in fact, have newly discovered prior art.
    • D2L reminds us that Blackboard is spending a ton of money on patent litigation and points to a proxy statement from the company showing that Blackboard froze salaries and cut 401K matching for its employees in 2008 (the implication being that employees are being squeezed to pay the litigation costs). Interestingly, Blackboard was recently ranked 17th out of over 2,000 publicly traded companies in terms of revenues per employee. Maybe they cut 401K benefits because the employees are so productive management never wants them to retire.

  • Blackboard Files Patent Infringement Suit Against Desire2Learn in Canada

    Once again, Jeff Bohrer gets the scoop. (Add this guy to your feed reader, for sure.) Blackboard has apparently been issued a Canadian patent comparable to its US patent and is suing D2L in Canada. As Jeff puts it,

    To summarize, here are the active proceedings in this complicated story listed in chronological order:

    – Blackboard vs. Desire2Learn (US Federal Court)
    – US Patent Office review of Blackboard’s “‘138” patent
    – Blackboard vs. US Patent Office (US Federal Court)
    – Blackboard complaint aginst Desire2Learn to US International Trade Commission
    – Blackboard vs. Desire2Learn (Canada Federal Court)

    Keep up if you can.

     

  • Bad News for Blackboard, Good News for ANGEL

    This is another one I’ve been meaning to post for some time. Last year, I wrote a post called Bad News for Blackboard, Good News for Moodle that talked about changes in LMS market share among American community colleges according to a survey done by the Instructional Technology Council. The headline number was that Blackboard’s market share in this customer group was declining rapidly, with Moodle being the primary beneficiary and ANGEL being the secondary beneficiary.

    Blackboard’s downward trend continues. According to this year’s study, Blackboard’s market share among ITC’s constituents is 59%, down from 77% percent the previous year. There was a slight drop in market share for the Blackboard platform, but most of it was for WebCT. It looks like Blackboard is failing to hold on to the community colleges that are being forced to migrate off WebCT as it approaches its end of life. 

    This year is something of a mirror image of last year’s results in the race for the #2 spot. ANGEL zoomed to the top, more than doubling their market share to over 20%. (It’s hard to tell the exact number from the graph in the report.) This is the first time I’m aware of that any non-Blackboard LMS has achieved market share in any U.S. segment that pushed so far into the double digits. The third place, Moodle, is up to about 11%, making ANGEL the clear front runner as the replacement for WebCT, particularly Campus Edition, which has had a lot of market share in the community colleges. (It looks like something close to two thirds of community colleges in the survey who left WebCT in the last year moved to ANGEL.) All the other entrants are at 5% or below.

  • Yet Another EduPatent Suit

    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.

  • 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.

    (more…)

  • 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.