e-Literate

Present is Prologue

Tag: edupatents

  • On Safety and Values

    Barry Dahl has posted some comments from John Baker regarding whether the possible backlash against Blackboard for the suit will have universities tar all LMS vendors with the same brush and move to open source instead. John made two points in response. First, John expressed faith in the educational community (based on feedback that D2L has gotten from their customers) that they will be able to see that the problem is vendors who assert patents for educational software in particular rather than proprietary software vendors in general. Second, he asserted that, if D2L succeeds in implementing a work-around to the patent that earns them a court ruling saying they no longer infringe, then they will be uniquely inoculated against the patent in a way that no other LMS vendor (other than Blackboard itself) could claim.

    I think John is probably right on both counts. In fact, he’s indisputably right on the second count. If D2L gets a non-infringement ruling at some point (which is not a given), and if the patent is not invalidated outright on appeal or by the USPTO, then D2L will be safer from the effects of the patent than any other platform going forward. While it’s true that Blackboard’s pledge is legally binding, it’s also true that the pledge is complex and the boundaries of it have never been tested in court. For example, what is the legal liability of support vendors for open source LMS projects? Nobody can say with certainty.

    On Baker’s earlier point, I see no evidence that university folk are rejecting vendors in toto. If bad feelings toward Blackboard because of the patent do result in substantial defections by Blackboard customers (also not a given), my sense from the educational community is that the relatively few people who view this as proof that all vendors are inherently bad are the ones who had already believed that to be true and see the lawsuit as confirming their current views. The majority of academics that I talk to see the root of the problem as being with one particular company and, possibly, with the US patent system. If anything, D2L may get a “good ethics” boost with some university decision-makers that could help them win in cases where the competition is a close one. I do think that the open source projects probably will benefit disproportionately from any flight away from Blackboard, but only because I think more institutions are willing to seriously consider adopting an open source LMS than there were a couple of years ago. It will be a level playing field with more viable players.

    Update: D2L has asserted in their latest court filing that the Blackboard pledge has some deliberately crafted legal holes in it:

    Bb may assert that the “patent pledge” insures continued competition by open source providers.. However, it appears that Bb has not truly surrendered its the ‘138 Patent against those entities. Bb has preserved arguments that so that it could revoke its Pledge and sue. For example, Bb has repeatedly stated that it does not know whether other companies infringe, yet knowledge of the act sanctioned is required for estoppel. See Young v. Amoco Production Co., 610 F. Supp. 1479, 1487 (E.D. Tex. 1985). Also, to prove estoppel any potential defendant must prove that it relied on Bb’s Pledge, and not on the advice of counsel as to its rights. See Hall v. Aqua Queen Manufacturing Inc., 93 F.3d 1548, 1558 (Fed. Cir. 1996). It would appear that Bb has carefully protected at least both of these escape routes.

    The real problem D2L faces in terms of customers is the current uncertainty about how far the suit will go. Universities tend to be highly risk-averse and the lawsuit understandably makes them nervous. What is lost in a lot of the discussion on individual campuses, I think, is that no platform is indisputably safe from this patent at the moment.

  • Blackboard Inc. v. Desire2Learn Inc.: “Grey” Monday March 10, 2008

    Yesterday, Desire2Learn submitted its response to Blackboard’s request for injunction (which was apparently submitted under seal) and accompanying letters from various school and university officials arguing that preventing D2L from selling their product in the United States would be against the public interest. Barry Dahl has done a terrific job of summing up the case that D2L makes in the filing. I definitely recommend reading his post. You’ll also want to read Jim Farmer’s post, below, which summarizes the current state of play with regard to the ruling on these filings that the judge will issue next Monday, based on what we know from the public court record. After reading both Barry and Jim, then I recommend that you read the two court documents themselves. They’re well written and pretty accessible–even more so after you’ve had tutorials from these two guys.

    – Michael

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  • A Couple of Good Patent Posts

    I’ve been slow to catch these because I’m really heads-down with work this week. (That will continue next week as well, since I’ll be at Oracle’s big higher education conference for most of the week.) Al Essa has his latest analysis of how broad he believes Blackboard’s patent is. It’s a timely review for those who haven’t thought about the details in a while. Meanwhile, Barry Dahl gives us advance warning that D2L will be posting their motion responding to Blackboard’s motion for an injunction (which Blackboard apparently submitted under seal) later today. This could be very important; I think teachers, students, and administrators in the United States will want to see Blackboard’s arguments for why schools who think D2L is the best platform for education should not have the option of choosing it in the future. Barry also has some other very interesting details; it’s worth reading the post in its entirety. As a side note, I’m really pleased to see Barry doing some investigative journalism on this subject. It’s critical for the educational community that we have as many people as possible uncovering the facts and their implications. The more crowd-sourcing we can do on this, the better.

  • Some Court Documents

    Well, it’s later than we expected, but we did finally get a copy of the jury questionnaire as well as Blackboard’s motion for prejudgment interest. (Both of these were provided by instructional media + magic and acquired from public sources.) And there are a few interesting details.

    Update: At the request of Blackboard’s legal counsel, we have removed the link to the motion for pre-judgment interest.

    Later Update: A link to the redacted version of the motion has been added back. In answer to some of the questions that I’ve been getting, the reason that Blackboard requested that the document be taken down in the first place is that there was a clerical error in which Exhibit D (referenced in the post below) should have been submitted under seal since it contained D2L’s client list. (Both companies have a right to keep their client lists confidential, and the customers of both companies have the right not to publicize which platform they use.) Blackboard’s legal counsel corrected the error through official channels and asked that we take down the part of the document that shouldn’t have been released in the first place. No threats were made. After thinking about it a bit and seeking a second opinion, I came to the conclusion that it was a reasonable request and took appropriate action. With Jim’s help, I got a copy of the filing minus Exhibit D and reposted it as soon as I had the chance.
    As to the question of why the instructional media + magic web site is down, it is undergoing maintenance for unrelated reasons.

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  • Blackboard Inc. v. Desire2Learn Inc.: Lunch with Fred Hofstetter

    In another post in his series of eye-witness accounts of the trial, Jim Farmer provides us with an interview of a fact witness who also happens to be one of the early pioneers in online learning.

    – Michael

    fred.gifFred Hofstetter was a fact witness in the recent Blackboard Inc. v. Desire2Learn trial. In a break, we had two-hour lunch at the local Red Lobster. Immediately I asked Fred about his development and implementation of learning systems.

    Professor Fred Hofstetter is known for his development of the GUIDO and Serf learning systems. As Professor of Education, Fred coordinates the master’s and doctoral programs in educational technology at the University of Delaware. His courses include: Internet Literacy, Multimedia Literacy, Internet Technologies, Educational Technology Foundations, Advanced Multimedia Web Design, Web-based Learning Environments, and Data Driven Web Design. Fred received his PhD in Music Theory from Ohio State University.

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  • An Eye-Witness Account of the Trial

    With all the coverage of the Blackboard v. Desire2Learn case, most of us (including me) have very little insight into the actual trial process. And with emotions running high about the case, it’s easy for people to jump to extreme conclusions about the process and everyone involved in it. That’s why I’ve asked Jim Farmer to write a first-hand account of the portion of the trial that he attended. In addition to being a knowledgeable observer of the legal system as a former expert witness in the U.S. Tax Court on behalf of the California State University in Los Angelese and in District Court in Denver on financial aid software, Jim is also a gentleman’s gentleman. I knew that he would give an account that is fair-minded and charitable to all parties involved. And that’s what he did.

    In the interest of full disclosure, Jim asks me to remind you all that Georgetown University, where he coordinates the Scholarly Systems Group, is a long-term satisfied Blackboard Learning Systems user. The views expressed in this blog post are solely his own.

    – Michael

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  • A Meeting of the Parties Today

    We’re a bit behind in getting Jim’s post up. (Or, to be more accurate, I’m a bit behind in getting Jim’s post up.) My new goal is to have up tonight. Also, we haven’t yet seen the jury’s documentation of their verdict, so that will wait a bit longer as well.

    In the meantime, there is a meeting today between Blackboard and D2L to see if they can reach an agreement on the remedy given the court ruling. (If not, then each side will present their argument for to the judge and the judge will decide on things like whether there will be an injunction, whether there will be a royalty and how much it would be, etc.) If the two sides come to an agreement we’ll know within a couple of days; otherwise the court will rule on March 10th.

    I don’t want to read to much into this, but it’s interesting that Blackboard has chosen Peter Segall (along with Matthew Small) to represent them in the talks. Peter is very well regarded as diplomat by a lot of folks (including me) and is not generally perceived to be an edupatent warrior.