All 44 Blackboard Patent Claims Invalidated by USPTO

This just in:

On March 25, the U.S. Patent & Trademark Office issued its Non-Final Action on the re-examination of the Blackboard Patent. We are studying the document, found here, but in short, the PTO has rejected all 44 of Blackboard’s claims. We caution that this is a NON-final action; both Blackboard and Desire2Learn will have an opportunity to comment before a final action will issue, and after that, the decision will be subject to appeals.

This decision actually should have come before the trial verdict but was held up because the USPTO had to decide what to do about the separate filings from D2L and SFLC. Now, in addition to the fact that Blackboard will be able to argue against the ruling with the USPTO, there are a number of questions regarding how this affects the court case. Will the damages finding still stand? Will the USPTO ruling render moot D2L’s post-trial motion before the judge regarding invalidity? If not, will it imact that ruling? What happens to the issues of royalties and injunction going forward? I think that I know the answers to some of these questions but don’t want to post anything until I have some more authoritative information.

Stay tuned.

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About Michael Feldstein

Michael Feldstein is co-Publisher of e-Literate, co-Producer of e-Literate TV, and Partner in MindWires Consulting. For more information, see his profile page.
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24 Responses to All 44 Blackboard Patent Claims Invalidated by USPTO

  1. Ed Garay says:

    I head the group that runs Blackboard at our university and we are very happy, as an institution, with Blackboard’s ease-to-use, rich feature set, and the maturity and integration capabilities of Blackboard systems. Blackboard’s licensing costs are, in our view, well worth it, in terms of the true costs of running a learning management system at a large school.

    Personally, I have a number of friends at Blackboard; I like them very much and I think they are good people, but I am glad to see news that the Blackboard patent claims will/might soon be invalidated.

    I am of the opinion that Blackboard should have never embarked into this nonsense, into this unnecessary e-Learning industry distraction, and that whatever money Blackboard would make out of it, if any, it would never amount to the costs and PR damage that they have inflicted on themselves.

    Blackboard has excellent technology, products and services. They should continue to compete and keep/attract customers on that, and not on wasting their/our time and resources filing patents and lawsuits.

    Hopefully, this will be the beginning of the end of this nonsense. Hopefully we can turn the page, move on, and once again focus on making good use of teaching and learning technology, and on enhancing and enriching education.

  2. Andrea Sterbini says:

    This is a very good new.

    Private companies should compete on the goodness of their products and services instead than patenting the hot water and asking all mothers on earth royalties for the right of cleaning their babies.

    I always suggest to Boycott Blackboard to all my colleagues and students.

    I will stop when this insanity is over.


  3. Andrea Sterbini says:

    This is a very good new.

    Private companies should compete on the goodness of their products and services instead than patenting the hot water and asking all mothers on earth royalties for the right of cleaning their babies.

    I always suggest to Boycott Blackboard to all my colleagues and students.

    I will stop when this insanity is over.


  4. Pingback: » Blog Archive » PTO sets Blackboard straight

  5. I use blackboard regularly at school, and I throughly dislike it. It is highly unintuitive IMHO. I also dislike software patents. Putting those two things together just made this entire story a tragedy to me.

  6. Edward Aadvark says:

    I would like to counter the suggestion that Blackboard is an excellent product with brilliant connectivity etc etc.

    It has a terrible interface – compare it to any web 2.0 application from Google or Facebook to see how appalling it is.

    Its internal architecture is also awful, as anyone who has seen some of the hacked together code (or even the produced HTML) will comment.

    On another level, the educational model it promotes is also flawed – it lacks flexibility or expandability (look at Moodle to see a model that grows and responds to the users).

    Its a sad truth that many institutions can’t afford for Blackboard installations to be found out as failures because of the vast amount of money they require – it would be interesting to count the number of BB installations that are basically repositories for lecture notes , with vast numbers of empty discussion boards.

  7. Frank ODonnell says:

    NUTS……………private property rights and USPTO should just go
    away and we can all feel good about sharing and caring about society
    and our good feelings ! This is nonsense and sentiment in the real
    marketplace of ideas and investment, no $$$ will be spent on future
    innovation unless ideas have value at the USPTO,Blackboard is just
    one example of many software cases where things must be decided by
    administrative rulings before a Court reviews the facts and history
    of ideas (i.e.Blackboard), so belittling Blackboard for defending it’s property rights strikes me as psychological behavior, no objectivity in these sentiments expressed. Both views of software (IP) will diverge but ideas do have value and the PTO exits to
    protect these rights and values, Thankfully !

  8. J Bowen says:

    I used Blackboard at a large institution during my graduate work. I found it lackluster on the front end, and abysmal on the back. I worked with IMS and IDA on the SCORM model, and we were constantly lied to by Blackboard reps about their plans to conform to that specification. In fact, they claimed to have a conformant SCORM player in 2004, but we still don’t see it in production.

    Blackboard fees were unreal: We paid per faculty member, regardless the number of faculty who actually used the system. We had trouble getting 80% to use it, but the administrators strutted like peacocks when they got to that number. Of course, a closer inspection showed that ~50% of the faculty using Blackboard only used it for functions (like posting syllabi, etc.) that could be accomplished with much cheaper software.

    The teachers who used Blackboard thought it was useful, but our surveys also showed that only 20% of the student body thought Blackboard was useful. The administration would never listen to our findings. We usually suspected they had “friends” at Blackboard.

    Now I’m a professor at another university and we’re using a different LMS. Students love it, faculty use has continued to climbed over the past two years (we’re close to 90% now), with both the number of faculty and the depth of the features employed increasing steadily.

    All this is to say: If you use Blackboard, you owe it to yourself, your trustees, and your students to investigate other options.


    As for the patent issues, they’ve always been a slap in the face of the geniuses behind PLATO, TICCIT, and other early NFS efforts to investigate computer-base instruction. Those researchers, who distributed their work widely for the benefit of the education community, deserve to be recognized for what (little) good Blackboard is. Hopefully, the appeal will uphold this invalidation.

  9. Blaze Spinnaker says:

    This is why I never develop software for the education industry. Way too anti-capitalist.

  10. Ed Garay says:

    Anyone who thinks that one can change a heavily used and widely popular learning management system at a large institution easily, quickly *and* inexpensively has never done it.

    In general, migrating from one LMS to another can take from 18 months to three years. I and most of the many colleagues I have, world-wide, are quite familiar with what is currently out there, the pros and cons of each of the systems we run, and those that we wish we run or even exist.

    An LMS migration strategy that I like and that seems to work well is one that involves running, both, the old and the new system, concurrently, for at least a couple of years, to allow for a more natural and smooth adoption by the faculty, with ample time to ensure that instructors and course builders are adequately trained and made comfortable in the new environment.

    Running and supporting two learning management systems *and* doing it well costs money, and I am not referring to annual licensing costs. Perhaps, some schools can do it quicker and better than others; perhaps, having large teaching and learning support staff makes the whole process go a lot easier and a lot quicker.

    I know having extra SysAdmins and application programmers helps accelerate the programming and integration with sudent information systems, university portals, and with what I call peripheral third-party LMS subsystems and functionality that must continue to exist or be integrated with the new LMS.

    We are not in 1996 when we had a couple dozen teachers using our early LMS offerings. It’s 2008 and a large number of schools, like mine, easily have over 3,000 busy faculty, lecturers, and other instructors using our systems, regularly; we have over 15,000 Blackboard course sites. Even after some heavy pruning, there will be an awful lot of content to move, a lot of people to train.

    One cannot just switch overnight, on a whim, because we strongly disagree with Blackboard’s patent/lawsuit absurd persistence, especially, if the Blackboard Learning System, when run well and when supported well, meets our campus needs and provides a popular rich and realiable teaching and learning environment.

    Blackboard Inc. will indeed feel the pinch and will pay the price of aggresively trying to assert its patents via lawsuits, etc., but it will take a few years, before the e-Learning industry rejection actually hits them where it hurts: in their pockets.

  11. Pingback: Random Syntax » Blog Archive » 44 Blackboard Patent Claims Invalidated

  12. George Smiley says:

    Frank ODonnell (not, apparently, Frank O’Donnell) typed: “…belittling Blackboard for defending it’s property rights strikes me as psychological behavior, no objectivity in these sentiments expressed.”

    1. The posessive of “it” is “its”, not “it’s,” you drooling retard.
    2. What in the name of f**k is “psychological behavior”?

  13. Sostenuto says:

    Blackboard’s aggressive IP strategy has highlighted two business continuity issues.

    1. Their appeal against the USPTO ruling and their suit against Desire2Learn show that we have to budget for expensive legal action, if we (the College) want to enforce our interpretation of the Blackboard licence terms.

    2. We have to survive the contingency of the product being discontinued for commercial reasons, and Blackboard’s business model does not include empowering clients to exit from their product, nor allow for independent agencies to gain sufficient expertise (nor permission) to repair it.

    We should rationally prepare their exit plan and execute it when the cost is lowest. Because we are adding courses, content and students every year, delaying our exit probably increases our cost.

    I would love Blackboard to negate these two considerations by (1) withdrawing their patent claims, (2) putting source code for the current versions into escrow to automatically become public domain when the current version is withdrawn from market, and (3) endorsing, informing and training third-party Blackboard customisation and maintenance services.

    Until this happens, I’ll be recommending a competitor on IT governance grounds.

  14. professor says:

    As a professor who has used Blackboard, D2L and locally created systems I have to say that BB is the best. My institution currently uses D2L (guess which state I live in..) and it is horrible. Many of its features are redundant, take too many clicks to accomplish little, and the upgrade process our institution went through recently had many problems…it’s no match for BB. Many of our older faculty couldn’t make some features work (like the gradebook which is a total maze) and eventually gave up using it, while older faculty I knew at BB-using institutions had fewer problems. D2L may be cheaper, but you get what you pay for….

  15. No says:

    Blackboard is a $300,000,000 monster of a company.
    The concept of software patents are bunk and the concept of web-based patents is even more bunk.
    Cant wait till they go out of biz…BB charges way to much and is not responsive…hope they go out of biz by a lowcost Pakistani, Indian, or Bulgarian firm!

  16. Steven says:

    I think it’s funny how anti-capitalist some colleges, and representatives of those colleges are, especially with the criticism directed towards Blackboard. The US Education system is down right broken and this is even more evident with the skyrocketing costs associated with getting a 4-year degree. If these “professionals” spent as much time focusing on reducing the cost for education (as they do bitching about patents and software on the Internet) then that would be a step in the right direction.

    Don’t blame increased educational costs on Blackboard/D2L/Angel either. The cost of ANY LMS (and yes open source DOES cost something at the end of the day) is a miniscule line item in an institution’s budget.

    We, as educators, developers and system administrators, have a social responsibility in educating the citizens of this country.

    This responsibility goes far beyond the time everyone (including Blackboard) has wasted on this whole fiasco.

  17. Ed says:

    Blackboard is already paying the price. Nobody is buying their fancy new assessment system and many WebCT customers are not renewing.

  18. Sean says:

    Thanks for stirring a debate, Mike. As always!-)

    Many interesting responses here, and some even sane. I am troubled with the analysis of Ed, but not his conclusions. Yes, I do believe that reputational damage has been done to BB in this fiasco, and that, given the choice, BB would not want to go down this path again. There were many trusted individuals within the company who were not informed of the decision before it went public. Legal eagles?…

    However, Ed, I would not support the cause and effect relationship with many WebCT customers not renewing. WebCT was removed as a threat. Why would anyone willingly prolong their dependence on WebCT any longer than necessary when it could disappear from support overnight?

  19. A couple of comments. First, from this comment forward, any comment who uses the phrase “drooling retard” or similarly derogatory language will be deleted. There are a million billion places on the internet where you can call other people names for the sheer joy of it. This isn’t one of them.

    On the issue of how college representatives may or may not be anti-capitalist because they criticize Blackboard’s patent litigation, I am neither anti-capitalist nor a college representative and yet I am strongly critical of Blackboard’s behavior. Before you make blanket condemnations about people who advocate a particular position, have the courtesy to read up on the position that they are advocating. There are many, many posts on this blog that explain why you can be pro-capitalist and still find Blackboard’s behavior objectionable.

    On the issue of branding, while I would like to believe that the market is punishing Blackboard for it’s anti-competitive behavior, evidence is to the contrary. What I hear from customers leaving Blackboard, who are overwhelmingly WebCT CE customers so far, is that the reasons have to do with (a) the support issues that Sean mentions, (b) poor quality of support in general, and (c) increases in licensing costs. The patent issue may have made it somewhat easier for universities to feel good about their decision to move once it has been made but, as far as I can tell, nobody is leaving *because* of the patent. At best, it’s a “straw that broke the camel’s back” kind of thing.

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  21. Bob says:

    Thanks for calling the troll, Michael, and for the post.

    Frank wrote:
    “belittling Blackboard for defending it’s property rights…”

    I believe any ‘belittling’ done here has been either for perceived poor quality of product and/or support (a valid reason to lament), or for Blackboard attempting to lay claim to the property rights of *other people* (if the non-final ruling is accurate, which, given the aforementioned 3 to 7 instances of prior art, I would presume to be the case).

    The free marked tends, as it should, to reward companies that have quality products, quality service, and (usually also those who at least overtly exhibit) sound ethical practices. Completely aside from their dubious legal dance, I personally feel that Bb has, in a measure, crowdsourced their QA process to their clients, which fails all three criteria. But my comment is based on my own experience, which may differ from those who have had no problems with either the Bb products or support. In their defense, I have heard talk of their realizing their mistakes in product and service and of their backpeddling to correct them. If this is true, then it is certainly commendable and may help to restore confidence. I do not mean to simply be negative, but I am afraid I am necessarily ‘once burned, twice shy’ due to how much rides on these matters for an institution.

  22. Zhongyan Lin says:

    It was ridicules for Blackboard to claim that it invented the user role and access permission. It had been used everywhere before Blackboard started its business. How did USPTO initially granted the patent? Blackboard did not invent anything but a piece of poorly designed and insecure junk.

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