e-Literate

Present is Prologue

Tag: edupatents

  • New Patent Information Center at EDUCAUSE

    Kudos! Find it here.

    In particular, be sure to check out this PowerPoint presentation about the costs of patents to universities.

  • Why I'm Not Worried about the Microsoft Patent Threats Against Linux

    Understandably, there’s been a lot of hand wringing about this. But the experts and evidence all suggest that Microsoft is all bark and no bite in this particular case.

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  • My Edupatents Talk at PESC

    Update:I tried to embed the slides from the talk but, unfortunately, SlideShare kept messing up my blog’s layout. You can find a copy of the slides here.

    Here is the presentation I gave at PESC on April 23rd. (Thanks to the good folks at im+m for recording and archiving the audio of the talk.)

    I’d like to make just a couple of additional comments:

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  • Still More on the Supreme Court Ruling

    Patently-O has a piece by Professor Joshua Sarnoff on the ruling. Sarnoff has quite a resume, apparently:

    Professor Joshua Sarnoff, Assistant Director of the Glushko-Samuelson Intellectual Property Law Clinic and a Practitioner-in-Residence at the Washington College of Law, American University. Professor Sarnoff filed an amicus brief in support of Petitioner KSR.

    Professor Sarnoff’s analysis of the ruling, once again, has some bearing on edupatents.

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  • More on the Supreme Court Ruling

    Patently-O has up a PDF of the KSR v Teleflex ruling (which, by the way, was unanimous). Basically, the court says that, while the original precedents provide adequate guidance for obviousness, the Federal Circuit has interpreted that guidance too narrowly, arguing that “Rigid preventative rules that deny recourse to common sense are neither necessary under, nor consistent with, this Court’s case law.”
    Probably the passage in the opinion that resonates the most with the kinds of issues that come up in Bb v. D2L and are likely to come up in any similar edupatent disputes is the following:

    When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense.

    In other words, if a problem is fairly well known in the market, and if there are a fairly small number of fairly well-known methods for solving similar problems, you can’t get a patent just by being the first to apply the known solution to the known problem.

  • Supreme Court Strikes a Major Blow for Patent Reform

    This is huge. Today the U.S. Supreme Court ruled in the case of KSR v. Teleflex, where the central issue was the meaning of “obviousness.” The reason that the word is important in patent law is because an innovation that is deemed “obvious” is not patentable. For example, Teleflex had combined two existing devices for truck gas petals and claimed that the combination was a new idea. KSR claimed that, even though nobody had combined the two devices in production at the time of Teleflex’s patent filing, it was fairly clear to “a practitioner with ordinary skill in the art” (i.e., Joe Truck Designer) that the two could be combined.

    This has direct bearing on Blackboard v. Desire2Learn. Before this ruling, the standard for proving obviousness was very high. As a result, finding, say, one pre-existing LMS that implemented half of the claims in Bb’s patent and another one that implemented the other half probably wouldn’t be enough. Unless you could find one system that implemented every one of the 44 claims, the case for invalidating the patent would be very difficult to make. This ruling should make D2L’s case easier.

    Just how much easier remains to be seen. I haven’t found any details on the ruling yet, so I don’t know what new guidance the court set.

    In related news, the court also ruled in favor of patent reform in Microsoft v. Alcatel-Lucent today. While this ruling is unlikely to have a direct impact on Bb v. D2L or on edupatents in general, we won’t know for sure until we see the written opinions. We should know more about both cases in the next couple of days.

  • Blackboard Inter Partes Determination Published

    You can find the documentation here. The USPTO found 13 of Desire2Learn’s 14 claims to raise substantial new questions of patentability. However, the government did not a preliminary finding, as is usual with an Inter Partes challenge, because they are considering whether this challenge should be merged with the Ex Parte challenge filed by the SFLC on behalf of the Sakai, Moodle, and ATutor communities. I assume that the finding will be issued once this decision has been made.

    If anybody has any further analysis of the document, please remember to tag it “edupatents” so that it will be picked up by the EduPatent Alerts system.