e-Literate

Present is Prologue

Tag: Blackboard-Inc.

  • Victory for D2L, Opportunity for Blackboard

    Well, my flight was delayed, so I missed the opportunity to witness D2L’s court victory celebration at Graceland. And I’m sure that they celebrated tonight The court denied Blackboard’s motion for contempt, meaning that Desire2Learn version 8.3 was found to be “more than colorably different” than the infringing version of the software and the court will not find that D2L’s software infringes under the framework of this trial. This does not necessarily mean D2L 8.3 is now and forever free from Blackboard’s patent. What it does mean is that, in order to pursue D2L 8.3, Blackboard would have to start a whole new trial–basically the same long, drawn out and expensive process that they just went through.

    This is another big opportunity for Blackboard to choose discretion as the better part of valor and quit the field. Blackboard still has a small but quickly diminishing chance to salvage their brand, but in order to do so they need to stop this patent foolishness now.

  • Connecting Blackboard to Sakai and Moodle

    I didn’t intend to post about this, but people keep asking me what I think, so I guess I need to get something up. For starters, you should read Michael Korcuska’s post on the subject. I agree with everything he says. Beyond that, here’s what I think:

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  • Blackboard Inc. Shows Deep Compassion for Desire2Learn Customers

    As expected, Blackboard has taken Desire2Learn back to court, claiming that 8.3 still infringes and charging them with contempt. Interestingly, the news of this showed up simultaneously in Inside Higher Education, THE Journal, and The Chronicle. It looks like Blackboard may have something to say that they want to make sure we all hear.

    What could it be?

    Here’s one candidate, said by Matt Small to Inside Higher Education:

    “We have all along said and continue to say, and mean, that we don’t want to do anything that will disrupt D2L’s clients, so if D2L should be held in contempt or sanctioned or if it should go bankrupt … we would hate to see a D2L school inadvertently shut down unexpectedly because D2L does not survive, and we’re committed to working with the schools to help them find a non-infringing alternative that is on their budget and on their time frame and of their choice,” he said. [emphasis added]

    How sweet. In a Tony Soprano sort of way, that is.

  • D2L Resolves Current Patent Burdens

    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.

  • 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.

  • 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.