Well, my flight was delayed, so I missed the opportunity to witness D2L’s court victory celebration at Graceland. And I’m sure that they celebrated tonight The court denied Blackboard’s motion for contempt, meaning that Desire2Learn version 8.3 was found to be “more than colorably different” than the infringing version of the software and the court will not find that D2L’s software infringes under the framework of this trial. This does not necessarily mean D2L 8.3 is now and forever free from Blackboard’s patent. What it does mean is that, in order to pursue D2L 8.3, Blackboard would have to start a whole new trial–basically the same long, drawn out and expensive process that they just went through.
This is another big opportunity for Blackboard to choose discretion as the better part of valor and quit the field. Blackboard still has a small but quickly diminishing chance to salvage their brand, but in order to do so they need to stop this patent foolishness now.
I also hope that BlackBoard sees this new development as an opportunity to take this patent, put it in a box and put it in long-term storage – kind of like at the end of the first Indiana Jones movie. This patent was always a fine defensive patent – it was never a good offensive patent. And sure you can keep things tied up forever in courts playing offense with defensive patents. But that is not a good approach to building a solid, respected brand – and in particular trying to grow a brand to be respected in areas beyond than LMS systems.