e-Literate

Present is Prologue

Tag: Desire2Learn

  • 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.

  • 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.

  • What I Want from the EDUCAUSE Seminar on Edupatents

    Seb has a good post up raising some questions for the free EDUCAUSE webinar on edupatents tomorrow at 1 PM Eastern time. I’ll add a few of my own (which in some ways are just extensions of Seb’s):

    • What are the various edupatents being litigated in the United States today and what is the potential impact of each of them? Who has liability exposure?
    • In an environment where we have multiple companies litigating multiple edupatents (as we already do today), what will happen to the market? How will this affect existing educational software vendors? New entrants into the market? Open source projects? Overall customer choice?
    • How do university intellectual property policies impact this environment currently? How are their efforts to lobby Congress regarding proposed changes to the patent law related to the current situation? How do their IP policies encourage or discourage this kind of environment?
    • What can individual universities do to minimize the adverse impact of edupatent litigation?
    • What can the university community as a whole do to impact the edupatent situation? What role can organizations such as EDUCAUSE play to help clarify the issues and foster positive collective action?

    I cannot overemphasize the point that the edupatent problem is not just a Blackboard problem. We now know of 3 separate edupatents in court in the United States, and that’s only the tip of the iceburg. EDUCAUSE is performing a valuable service by raising awareness through this webinar, but I’m afraid that it will all be in vain if its individual constituent universities do not step up and confront this issue head-on.

  • Blackboard v. Desire2Learn: The First Final Judgment

    This is a guest post by Jim Farmer.

    Delayed several days by a database failure at the District Court for the Eastern District of Texas Friday, May 2nd, the Final Judgment and associated orders for Blackboard v. Desire2Learn are now publicly available.

    This text is based upon publicly available records. Because much of the record is “sealed” and not available to the public, and the transcript is available only upon payment to the court reporter, the complete record, as available to counsel, may provide a different perspective.

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  • Is Blackboard's Lawyer Calling D2L's Customers?

    Here’s an interesting bit from D2L’s patent blog:

    Clients have been calling us to let us know that Matthew Small, General Counsel of Blackboard, has been calling them. From what we understand, his purpose appears to be twofold: (1) to encourage clients to switch to Blackboard ; and (2) to create FUD (fear, uncertainty, doubt) with respect to alternative products and services in the eLearning space.

    From what we gather, he has been making statements that are not supported by the record in the Court or by the actions of the Patent & Trademark Office. If your organization is called, we invite you to suggest to Mr. Small that we are always willing to engage in an open dialogue with you and him.

    We remain confident that Learning Environment version 8.3 is an appropriate design-around to the patent claims – as we announced nearly one month ago. We also remain confident that the patent’s claims are invalid and that the Courts and the PTO will ultimately invalidate the patent.

    As there is no www.factcheck.org for this litigation, we continue to encourage you to review the documents and the facts. We are happy to discuss any questions that any client, or other interested people, may have. Just let us know!

    John Baker, President and CEO ([email protected])
    Diane Lank, General Counsel and Director, Legal Services ([email protected])
    John McLeod, Director of Marketing ([email protected])

    It’s unsurprising that an aggressive company engaged in a lawsuit with its competitor would use the suit to try to poach customers. But I’ve never heard of a company having their lawyer act as a sales guy. If it’s true, it certainly demonstrates a pretty high level of chutzpah.

    I’m very curious to find out more.  If you’ve received a call like this or know anybody who has, let me know. I’m particularly interested in who called and in what factual claims they made about the legal situation.

  • What the Sakai Announcement Means

    Barry Dahl read the Sakai Foundation’s recent announcement about the Blackboard patent pretty closely and is concerned that it sounds like they think the fight is over. I completely understand why he interpreted it that way, but I read it a little differently. If you look closely at the specifics of the legal situation, the Foundation’s position begins to make a lot more sense.

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