e-Literate

Present is Prologue

Tag: Matthew-Small

  • US Department of Justice Investigating Blackboard ANGEL Acquisition

    This just in from Desire2Learn’s patent blog:

    Blackboard issued two press releases regarding its acquisition of ANGEL Learning (ANGEL) – one on May 6, announcing the intention to acquire, and one on May 11, stating that the acquisition was complete. Indeed, Matthew Small, Blackboard’s chief business officer (and general counsel) stated “I don’t think that there’s any anti-trust concern with this combination.“

    On May 14, 2009, nearly 2 weeks ago (and the day that Michael Chasen addressed the attendees at the ANGEL users’ conference), the United States Department of Justice, Antitrust Division (DOJ) opened an investigation on the Blackboard acquisition of ANGEL. We were notified that same day (presumably Blackboard and ANGEL Learning were notified well before then). At that time we thought this information was confidential, so we did not disclose it.

    Today the DOJ advised us that the investigation is not, and has never been, confidential. In the coming days and weeks, it is likely that we will be responding to requests from the DOJ about the market.

    Given the interest of the educational community in these developments, we thought it important to share this information.

  • Blackboard and Desire2Learn Fight Over Venue for Next Round

    *Sigh.* At some point I hope the world–and the Blackboard case–will slow down enough so that I’ll actually have time to blog about something else.

    Here’s the latest from D2L’s patent blog:

    April, 2008 – Matthew Small, Blackboard’s Chief Legal Officer:

    “Certainly we believe the reexamination process is a healthy process. It serves to generally strengthen patents, and this case is no different.”

    http://www.thejournal.com/articles/22358

    May, 2008 – Blackboard’s filing with the Patent & Trademark Office:

    “Patent Owner Blackboard Inc. (“Blackboard”) hereby petitions the Office to suspend the inter partes reexamination between Blackboard and Third Party Requester Desire2Learn Inc. . . .”

    Petition To Suspend Inter Partes Reexamination Under 35 U.S.C 6314(C)

    Yesterday, despite Blackboard’s prior assertions (including on its own website) about welcoming the re-examination of their patent, Blackboard has now requested that the Patent and Trademark Office stop its re-examination of the patent. We will leave it to others to speculate about the reasons for Blackboard’s change of heart.

    Note: we have not yet received the exhibits that the filing to which the filing refers. When we do receive them, we will post them. (As an aside, we’re still awaiting the exhibits to Blackboard’s response to the PTO’s rejection – they, too, will be posted upon receipt.)

    On another note, and consistent with our position since the beginning of this litigation, yesterday we filed an Emergency Motion To Stay Proceedings Pending Reexamination Or Alternatively, Motion To Stay Judgment Pending Appeal with the United States Court of Appeals for the Federal Circuit. That filing, as well as the numerous exhibits and related papers that accompanied it, can be found here.

    It looks like D2L wants to pursue this through the USPTO while Blackboard wants to go through the US Court of Appeals. Each is trying to petition one body or other to suspend what could be duplicative processes.

  • Is Blackboard's Lawyer Calling D2L's Customers?

    Here’s an interesting bit from D2L’s patent blog:

    Clients have been calling us to let us know that Matthew Small, General Counsel of Blackboard, has been calling them. From what we understand, his purpose appears to be twofold: (1) to encourage clients to switch to Blackboard ; and (2) to create FUD (fear, uncertainty, doubt) with respect to alternative products and services in the eLearning space.

    From what we gather, he has been making statements that are not supported by the record in the Court or by the actions of the Patent & Trademark Office. If your organization is called, we invite you to suggest to Mr. Small that we are always willing to engage in an open dialogue with you and him.

    We remain confident that Learning Environment version 8.3 is an appropriate design-around to the patent claims – as we announced nearly one month ago. We also remain confident that the patent’s claims are invalid and that the Courts and the PTO will ultimately invalidate the patent.

    As there is no www.factcheck.org for this litigation, we continue to encourage you to review the documents and the facts. We are happy to discuss any questions that any client, or other interested people, may have. Just let us know!

    John Baker, President and CEO ([email protected])
    Diane Lank, General Counsel and Director, Legal Services ([email protected])
    John McLeod, Director of Marketing ([email protected])

    It’s unsurprising that an aggressive company engaged in a lawsuit with its competitor would use the suit to try to poach customers. But I’ve never heard of a company having their lawyer act as a sales guy. If it’s true, it certainly demonstrates a pretty high level of chutzpah.

    I’m very curious to find out more.  If you’ve received a call like this or know anybody who has, let me know. I’m particularly interested in who called and in what factual claims they made about the legal situation.

  • 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

    (more…)

  • On Edupatents, Corporate Branding, and Putting Words in People's Mouths

    There’s a write-up of the edupatent flap in eSchool News. It provides a reasonably good summary of the basic history, as far as these types of stories tend to go, and also gives a high-level account of the current state of the legal battle. (Short version: It’s dragging on.) All in all, it’s a useful summary of what we already know. But it does include one statement by Blackboard’s General Counsel Matthew Small that’s a bit of a jaw dropper.

    (more…)

  • Blackboard Patent Celebrity Death Match

    I note with satisfaction that Eben Moglen’s keynote speech [MP3] and debate with Matthew Small [MP3] have already been reported and commented on in a number of places. (See, for example, Seb’s analysis.) This pleases me for two reasons. First, it means we have developed a healthy community response mechanism to make sure we are all informed of future patent shenanigans. The second reason it pleases me is because, frankly, I’m sick of talking about nothing but the patent fight. The Sakai conference, for example, was excellent, and there were many good conversations that I’d much rather blog about (and will blog about in due course). That said, since I was actually in the room for both presentations, I feel obliged to give my own gloss on them.

    Moglen’s keynote was fascinating. The guy is clearly brilliant. While I didn’t agree with everything he had to say, I agreed with much of it and learned much from it. The talk is well worth listening to and well worth sharing with others. Alas, I cannot say that I feel the same way about the debate between Moglen and Small.

    (more…)

  • 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.