e-Literate

Present is Prologue

Tag: Blackboard-Inc.

  • Blackboard's Dirty Laundry Comes Out in Patent Trial

    Desire2Learn has published some fairly tawdry details that have emerged during the discovery phase of the patent trial. (During discovery, both sides can demand to see relevant internal documents from the other side. Nasty confidential details can get exposed.) For one thing, Blackboard apparently sponsored a spy to go to the D2L user conference and report back on the events and even had an employee pose as a university employee (with a fake email address) to gain competitive information.

    Classy.

    Also, Blackboard’s communications with its PR firm apparently say that, while the public story around the patent is that they are protecting their intellectual property, the “real” purpose was to “contain and control” D2L. So the goal is to distract the #2 vendor in the LMS space with a costly lawsuit. Not only has Blackboard known all along that their lawsuit could damage competition in the LMS space (as I and others have argued); they explicitly intended to damage competition, as the court documents apparently show. Judging by the amount of traffic I saw at the D2L booth this week here at EDUCAUSE, it looks like they failed.

    There’s more to the blog post, which is worth reading in its entirety (although it will probably make you sad and a little queasy.) D2L is preparing to file for a summary judgment, which is not surprising given that they have already gotten two thirds of the patent claims ruled invalid by two different judges. Sadly, since Blackboard’s motive is apparently to cost D2L as much money as possible regardless of their chances of winning in court, it seems virtually certain that Blackboard would file an appeal if they lose.

  • Backward University IP Polices Force Convoluted Sakai License

    A couple of weeks back, I was somewhat disturbed to read a post by Unicon’s John Lewis on the forthcoming Version 2.0 of the Educational Commons License (ECL), which is used by both the Sakai and the Kuali projects. While pointing out some significant improvements over the previous version, John notes correctly that the proliferation of open source licenses has a cost in terms of confusion in the marketplace and wonders why Sakai and Kuali can’t just use the Apache license upon which ECL is based. (After all, he observes, Moodle uses plain vanilla GPL.) So John did a little digging, and the only difference he could find between ECL and the Apache license was a clause on patents. Specifically, ECL weakens Apache’s patent protection clause.

    Seeing this, I contacted Chris Coppola, the Sakai board member who has been leading the charge on licensing issues. Chris was gracious enough to post more detail on the issue and help me get in contact with other folks who could help me make sure that I understand the legal implications correctly. Now, I happen to trust Chris’s judgment and motivation, and I am confident that the license would have come out the right way if he had final say. Unfortunately, he does not. Nor does anyone on the Sakai Foundation Board. As a result, ECL 2.0 is disturbingly flawed from the perspective of the edupatent crisis. (more…)

  • Court Re-affirms Invalidation of First 35 Blackboard Patent Claims

    This just in from the D2L patent blog:

    On August 4, we announced that Magistrate Judge Hines had issued his Memorandum Opinion Construing Claim Terms of the United States Patent No. 6,988,138 (the “Markman” decision). We noted that the decision was subject to procedural appeal. The decision rendered claims 1-35 invalid. On August 22, we posted the Objections that Blackboard filed to the Memorandum Opinion, as well as the Conditional Objections that we filed. Finally, on August 30, we posted the respective responses to the Objections and Conditional Objections.

    Today, we received notice that the Court issued its Order Denying Plaintiff’s Objections to Memorandum and Order Construing Claim Terms of the United States Patent No. 6,988,138. In the Order – as indicated by its title – the Court, by Judge Clark, denied Blackboard’s Objections. It denied as moot our Conditional Objections. We had requested that the Court consider our Objections only if it reversed the initial Memorandum Opinion.

    The bottom line: Two judges have now ruled Blackboard’s Patent Claims 1-35 are invalid because of indefiniteness of claim 1. Blackboard cannot claim infringement at trial of those claims.

    We mentioned before that we were pleased with Judge Hines’ decision. Suffice it to say we are now very pleased.

  • And Now for Something Completely Different…

    In an apparent move to call attention to its language pack support, and in honor of “Talk Like a Pirate Day,” Blackboard has apparently released a “Talk Like a Pirate” translation pack.

    [Insert your own joke here.]

  • On Edupatents, Corporate Branding, and Putting Words in People's Mouths

    There’s a write-up of the edupatent flap in eSchool News. It provides a reasonably good summary of the basic history, as far as these types of stories tend to go, and also gives a high-level account of the current state of the legal battle. (Short version: It’s dragging on.) All in all, it’s a useful summary of what we already know. But it does include one statement by Blackboard’s General Counsel Matthew Small that’s a bit of a jaw dropper.

    (more…)

  • Blackboard v iParadigms Is Over

    As has already been reported in several other fora, Blackboard and iParadigms (the maker of Turnitin) have settled their patent dispute out of court and are working together again as partners. I’m not sure that we’ll ever really know what happened between the two companies, but any amicable settlement that leads to the non-assertion of an edupatent is good news for universities.

  • Sorting Out the Issues in Blackboard v iParadigms

    The latest news is that Blackboard has stated that the language of the intellectual property waiver in their contract with iParadigms was specific to that contract, motivated by specific concerns about the particular company and business relationship involved. Blackboard further states the language is not present in their standard Building Blocks contract or other partner contacts. This is an important clarification and one that I am happy to pass on.

    But from the editorial perspective of this blog, the contract issue is and always has been a side issue anyway. The reason that the Blackboard v iParadigms story hit these pages in the first place was because it was about one educational software company asserting a patent against another. Now, because Blackboard was the one to file suit, it was logical to speculate that Blackboard was the one asserting the patent. Logical but incorrect, as it turns out. And the fact that the actors are in different roles than we might have thought should not change our views on the actions themselves. I have argued in these pages that asserting patents within the educational software sector, on balance, does more to stifle innovation than to foster it, meaning that its net effect is exactly the opposite of the intended effect of patent law. If one believes that to be true, then one must oppose the actions of any company seeking to pro-actively assert a patent for educational software and support the right of any company to mount a vigorous defense. There are many situational facts in this particular case that are unclear, but one central, salient fact is clear: iParadigms was seeking to assert a patent for educational software. From the perspective of the edupatent crisis, all other details are ancillary.

    While it can be tempting to equate poetic justice with actual justice, the two are not the same at all. Two wrongs don’t make a right.