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Present is Prologue

Tag: Desire2Learn

  • USPTO Orders Blackboard Patent Re-examined–Again

    We interrupt our regularly scheduled blog post to bring you this breaking news:

    Based on Desire2Learn’s Inter Partes request, the USPTO has ordered that the Blackboard patent be re-examined. This is a separate ruling from the one in response to the Ex Parte Sakai/ATutor/Moodle filing. As I have previously noted, the law requires that the USPTO issue a preliminary ruling along with a re-exam order in an Inter Partes challenge. That means we should know shortly whether the government is upholding the patent, narrowing it, or invalidating it altogether.

    Stay tuned.

    There are a number of events that are likely to cascade from this ruling rather quickly. I will not always have time to blog now about every post and development that I see. However, I will, at the very least, tag items I see for inclusion in the Edupatent Alerts. (I hope that you will do the same.) If you want to follow these developments closely, I strongly suggest that you subscribe by email or RSS.

  • Desire2Learn Responds to the Blackboard Pledge

    Here’s the meat from the full post:

    We at Desire2Learn are unwavering in our position that the patent claims are invalid and unenforceable against Open Source, our competitors, and us, and that we do not infringe on the claims. We look forward to a decision by the United States Patent & Trademark Office (USPTO) on our comprehensive petition for an Inter Partes re-examination of the patent. We will continue to invite Blackboard to dissipate the cloud that it has cast over innovation and the educational ecosystem. The “pledge” does not alter Blackboard’s attempt to dictate educational software business models. We will continue to resist Blackboard’s attempts to monopolize the methods by which universities, schools, libraries, and other entities build their educational platforms. Blackboard continues – with the “pledge” perhaps even to a greater degree – to decree with whom education and business worldwide may conduct business. The users – not the vendor – should determine which competitive offering best fits the needs at their institution. By attempting to dictate educational software business models, Blackboard appears to fear competition.

    In taking the “pledge,” Michael Chasen claimed: “[Blackboard is] committed to the open exchange of ideas, collaboration and innovation . . . [t]his pledge is part of that commitment and our continued efforts to work collaboratively with the e-Learning community to foster greater openness and interoperability.” In light of Blackboard’s purported change of heart it suggests in its “pledge”, and the USPTO’s decision to grant re-examination of the patent, we encourage Blackboard to give meaning to Mr. Chasen’s words, and to join us in requesting that the court stay the litigation until the USPTO has had an opportunity to complete its work. This action would enable all members of the community – including Blackboard – to focus on their primary objectives.

  • Ex Parte and Inter Partes Patent Re-Examination

    As you know by now, the Blackboard patent has been challenged at the USPTO by separate requests filed by the SFLC and D2L respectively. SFLC filed what’s known as an ex parte request, while D2L filed what’s known as an inter partes request. I think it’s important for the community to become familiar with these two strategies because we’re likely to see them employed again in our future. Seb has some nice commentary up about the basics of the specific situation with the Blackboard patent. (Be sure to read the comments; there’s one by one of the leading researchers on patent re-examination.) What follows here is more of a high-level overview of the legal strategies in general.
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  • What the Sakai/Moodle/ATutor Re-Examination Request Really Means

    By now you’ve probably seen that the Software Freedom Law Center (SFLC) has filed a request to re-examine Blackboard’s patent with the USPTO on behalf of Sakai, Moodle, and ATutor. You may have also seen that D2L has filed a different kind of re-examination request with the USPTO. (SFLC’s request is what’s known as ex parte, while D2L’s is inter partes.) I’ll have more to say about the legal maneuvers in tomorrow’s post. For now, I’d like to address a larger context.

    The Sakai/Moodle/ATutor request is generally being characterized as the “Open Source” response to Blackboard’s patent. This is unfortunate, as is the fact that SFLC is perceived to be leading the charge. Because to my mind, the most important message from this filing to Blackboard and the market has nothing to do with Open Source.

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  • The Economic Impact of the Blackboard Patent Suit

    One of the topics that I’ve been meaning to get to since EDUCAUSE is the likely impact of the patent suit on the financial health of Blackboard, Desire2Learn, and the other LMS players. I got to talk to a number of university decision-makers and observe the activity at the booths of various LMS vendors. My conclusion? In the short term, both Blackboard and D2L are likely to do just fine. However, a slowdown 9-12 months out is likely.

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  • Conversations with Desire2Learn and Blackboard

    While at EDUCAUSE, I had opportunities to sit down with both Blackboard’s General Counsel Matthew Small and the Desire2Learn executive team. In the spirit of diplomacy, everything in this post has been reviewed by both sides, and there are aspects of our conversations that will remain private.

    In my conversation with Matt Small, we spent a fair bit of time talking about the impacts of patent assertion on the educational technology ecosystem. I emphasized that, even if I thought that Blackboard’s patent were valid, I would still oppose their efforts because of the damage that an environment of patent litigation will have on innovation. I also let him know that I believe there are others in the community who feel the same way. (I don’t want to presume to speak for anyone but myself.) In turn, the position that he articulated to me was pretty consistent with his public statements.

    My conversations with the Desire2Learn team included CEO John Baker, COO Jeremy Auger, General Counsel Diane Lank, and Director of Marketing John Mcleod. The main message I took away from that conversation was pretty much the same one that they recently posted in their patent litigation blog, i.e., that they view themselves as fighting for the interests of the entire educational community, including universities, Open Source projects, and proprietary competitors.

    Thanks to both parties for making the time to speak with me.

  • Blackboard Conference Call, Part II

    As I said in my previous post, I was allowed to ask quite a few questions of Matthew Small in Blackboard’s patent Q&A webinar tonight. I chose not to ask any regarding the scope or validity of the patent, since I saw no benefit in crossing swords on those issues. Instead, I focused my questions on the potential for broader harm to the industry. Matthew Small took great pains to emphasize that Blackboard’s intentions are narrowly focused on D2L and that this patent is not, in his words, “a game changer.” I wanted to find out if he really believed that, if he can defend it, and if he knows how strong or weak his defense is. My conclusion? My gut is that he believes it. I’m confident that he can’t defend it. And I think on some levels, at least, he knows that his defense is weak.

    In fairness, all of what follows is paraphrase. I don’t have a recording or transcript of the conversation. I invite other participants (including Mr. Small) to correct the record if I get anything wrong or out of context.

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