A number of folks have contacted me asking for up-to-the-minute updates on the trial. To begin with, I am tagging all relevant articles so that they appear in the EduPatents feed. I probably won’t blog about most of these directly unless I feel I have something substantially new to say about them, so my advice to those itching for news is to watch the feed. I will blog any new (non-confidential) information that I hear directly from people at the trial, and there is at least a small chance that I’ll have a guest blogger who is present in East Texas write a post or two on what he is seeing.
Tag: edupatents
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EduPatent Busted! (But not the one you're thinking of…)
This good news in from John Lewis:
A long-time target of the Electronic Frontier Foundation’s Patent Busting Project has finally been destroyed. Back in 1999, Test.com patented for-fee testing over the Internet and has since approached a number of publishers and universities seeking licensing fees. The patent was reexamined last year and now the PTO has officially rejected all of the claims in the patent as “obvious and non-patentable”. Online testing is finally safe for the public domain.
One down….
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Blackboard v Desire2Learn Trial Is Coming Up
Since our last posting, we received word that the judge has decided not to rule on any summary judgment motions – he’s letting all issues go to trial. As a result, Desire2Learn’s legal folks – inside and outside counsel – have been working overtime preparing for trial.
We’re going to trial on February 11, in Lufkin, Texas. We anticipate that the trial will last approximately two weeks – both sides have been restricted to 18 hours each to present their cases. We continue to be grateful for the support of others in the industry. Most of the issues will be tried before a jury; inequitable conduct is tried before the judge. At this point, we’re (obviously) careful about divulging our trial strategy – we’re sorry we can’t share more.
As much as ever, we’re confident of our defenses, including the defense of the patent’s invalidity and inequitable conduct, and the fact that we do not infringe.
Looking for a warm place to spend a couple of weeks in February? Consider an early-spring trip to Lufkin!
If anybody is planning to go to the trial, please let me know.
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An Open Casket After All
Update: The intrepid Jim Farmer has also posted a copy of the D2L entry in the immagic eLibrary.
As it turns out, one of your fellow e-Literate readers saved the D2L post and pasted it into the comments section of my last post.
I love you guys.
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Burying the Bodies
Following my last post regarding the nasty details of Blackboard’s behavior that came out during the discovery phase of the trial, we now see the following message up on the D2L blog:
[Our Litigation Update post, originally posted here on October 24, has been temporarily removed, as late today we received a letter from Blackboard’s lawyers.
Right now, our lawyers are quite busy preparing responses to various court filings by Blackboard – and those responses must be filed with the court soon. It’s more important for our lawyers to address the substantive issues, and not be sidetracked by Blackboard’s attempted distractions. So . . . it’s down, but we promise it’ll be back, in one form or another.
We continue our pledge to be as transparent as possible. And now perhaps our readers can begin to appreciate how difficult that can be.]
I don’t suppose anybody out there has a cached copy of the post….
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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.
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My Point Exactly
Inside Higher Ed has coverage of a Congressional hearing on “The Role of Federally Funded Research in the University Patent System.” Here’s the money quote:
Arti K. Rai, a professor of law at Duke University School of Law, agreed that there was no need for lawmakers to contemplate “a major overhaul of the current system” by which universities patent government-funded research. But she argued that the incentive the government gives universities to patent inventions may not be as appropriate in all fields of research, singling out information technology in particular as an area in which the federal interest may lie more in having discoveries hit the market as open source applications rather than as patented products.
“At universities, there is sometimes too much emphasis on generating revenue,” Rai said. “Federal agencies and universities should show more sensitivity” to the idea that certain types of research might be better developed in non-commercial ways.As if to prove the point, it turns out that the hearing was called in the first place largely because Iowa State University wants to change the law that limits the total amount of money that federally funded research labs can collect on patent licensing, raising the limit from 5% of total budget to 15%.
With encouragement from [Iowa Senator Charles] Grassley, Elizabeth Hoffman, executive vice president and provost at Iowa State, testified at Wednesday’s hearing that the 5 percent limitation unfairly affects small labs like Ames, while mammoth labs like Sandia National Laboratory, its partner on the solder research, never get close to the 5 percent threshold because their operating budgets are so much larger. She urged lawmakers to amend the Bayh-Dole Act — the 1980 law that set the guidelines for how nonprofit institutions have retained title to inventions resulting from federally funded research, filed patents and sold licensing rights to small businesses and corporations — by raising that threshold to 15 percent for “government-owned, contractor-operated” labs with annual budgets of under $40 million.
“Any such limitation must not discriminate against only a portion of government-owned, contractor-operated, nonprofit entities,” she said. “Certainly, it should not have an inequitable impact on a single, small and successful national laboratory.”
While Grassley endorsed Hoffman’s proposal — which was modeled on legislation that has been approved by the House of Representatives and introduced by Grassley in the Senate — Leahy, the only other senator to attend Wednesday’s hearing, expressed skepticism about it. If Congress raises the royalty threshold to 15 percent of a nonprofit’s budget instead of 5 percent, and Iowa State strikes gold with another invention, “won’t you want to change [the threshold] again?” Leahy asked.
“I hope we’re so successful,” Hoffman said. “At this point in time, we would be happy with the 15 percent.”
“At this point … I understand,” Leahy said with a smile.