e-Literate

Present is Prologue

Tag: edupatents

  • Social Media, Social Activism, and Edupatents

    Back when the Blackboard patent and lawsuit first surfaced in July of 2006, social software was still a pretty new thing. There was a fair bit of surprise in the community when the Wikipedia page on the History of the Virtual Learning Environment, created in large part to gather prior art for the suit, generated 160 entries in just a couple of weeks. As of this writing, there are 160 members of the Fans of D2L Million$Mission Facebook group just a few days after its creation. 

    It will be interesting to see how Facebook impacts the voice that ordinary teachers and students have in this drama. The barrier to entry is certainly lower that it was with the Wikipedia page; you don’t have to know wiki markup and you don’t have to have historical content to contribute in order to participate. Many more people are involved in social networks now, and the viral nature of Facebook is very different than that of Wikipedia. And finally, the people who sign up for the group on Facebook have names and profiles attached to them. It’s much less anonymous. So we’ll know more about who is voicing support than we did in 2006.

    What we won’t necessarily know is why. That’s why I have created a discussion thread in the group asking people to post their reasons. If you joined (or will join) this group, please take a minute on that thread to explain why you are supporting the Million$Mission.

  • Vote for the D2L Million$Mission on Facebook

    Apparently, somebody started a Facebook group supporting D2L’s offer to Blackboard to donate a million dollars to schools in return for Blackboard dropping the patent suit. Facebook groups have become a way for people to express their support for an idea or an initiative. This is something that wasn’t in fashion yet when the original patent fight started, and it adds a new way to gauge the popular sentiment at universities. 

    If you support D2L’s proposal, you might want to join the group.

  • Desire2Learn Challenges Blackboard With $1 Million Charity Pledge

    There are two pieces of news here. First, Blackboard has apparently been granted a new patent and has filed suit for infringement against Desire2Learn in the East District of Texas—again. I have not read and will not read the new patent filing because to do so would put my employer in legal jeopardy, thanks to the weirdness that is U.S. patent law. I’m told that this is a “continuation patent”, meaning that it is a refinement of the original patent that Blackboard asserted against D2L and which has received a preliminary judgment of invalidation from the USPTO. (Does that make sense to you? No? Well, what did you expect? Like I said, it’s patent law.)

    Second, Desire2Learn has made a clever proposal to Blackboard in response:

    • Blackboard drop its recently-filed suit in a timely manner.
    • In return, Desire2Learn will donate $1,000,000 to non-profit schools and educational organizations. 
    • Blackboard is invited to join us with its own donation. 
    • Up to 50% of the Desire2Learn donation will be directed toward schools in need in and around Washington, D.C., the home of Blackboard.
    That’s bound to get some attention.

  • Blackboard Now Suing USPTO

    Update: The Patently-O blog has a short post on this issue. There’s not a lot of new information here, but at least the reporting is done by actual patent lawyers.

    According to Desire2Learn’s patent blog, Blackboard has now filed suit against the USPTO (technically against the Director of the USPTO) to stop the inter partes re-exam from proceeding. Their argument is that the law states the USPTO cannot order a re-exam after a final judgment has been rendered by the courts upholding the patent. The point of the law is to prevent defendants from going to daddy (the USPTO) after mommy (the courts) say “no.” In the complaint, Blackboard argues that the USPTO is applying the law incorrectly by allowing a re-exam to go forward until all appeals are exhausted in the courts. Instead, Blackboard argues that the cutoff should be the judgment from the first court. Blackboard doesn’t cite any precedent for their argument, which strikes me as odd. I know that inter partes is relatively new, but I find it hard to believe that this has never been tested before.

    In their blog post, D2L raises two points in response to the suit. (D2L is not a party to this particular suit so, unless they file an amicus brief, they won’t have any say in court on this one.) First, they point out that Blackboard has previously said they welcomed the re-exam and expected it to strengthen their patent. While this point doesn’t have any legal implications, it does raise the question of how sincere Blackboard’s statements were in this regard. Clearly, they prefer their chances in the courts to their chances in the USPTO. The second point that D2L raises may have legal implications, although I don’t have the ability to properly assess that question as a non-lawyer. They note that Blackboard doesn’t mention in their filing that the USPTO had preliminarily invalidated all claims of the patent. Timing here may be important. If I recall correctly, the USPTO issued this ruling before the final judgment from the court. If so, that could complicate Blackboard’s argument significantly.

    Regardless of the legal merits, the fact that Blackboard continues to assert the patent heavily undermines their new marketing message of openness. I don’t understand why they still think this strategy is a winner.

  • Bizarre Chapter in Blackboard, Inc. v Desire2Learn

    There’s a really…um…weird story posted up on D2L’s patent blog about how the court allowed Blackboard to send somebody to poke around D2L’s conference. D2L knew about it, but it was supposed to be kept secret from the conference attendees.

    Very strange.

  • When Academia Puts Profit Ahead of Wonder

    Here at e-Literate, we’ve been arguing for some time that part of the edupatent problem rests squarely on the shoulders of the many universities that pursue profits from intellectual property too aggressively, at the expense of their mission. Well, there’s a New York Times piece out this week that makes the same case.

    Read it, please.

  • Blackboard, Inc., Loses Battle In EduPatent Venue Fight

    According to a blog entry on Desire2Learn’s Patent blog, the US Patent and Trademark Office has denied Blackboard’s request to suspend the re-examination process. Bb and D2L have been fighting over the venue for the next round of the battle, with Blackboard asking the USPTO not to complete the re-examination process (despite having earlier said that a re-exam would only make their patent stronger) and D2L asking the US Court of Appeals not to hear Blackboard’s case until the USPTO issues a final ruling. D2L has won the first of these two battles.