Update: Patently-O blogger Dennis Crouch has posted a legal analysis of the ruling in which he concludes, “Defendant Desire2Learn wins a complete victory (after a few million in attorney fees).”
Via Desire2Learn’s patent blog, we learn today that the U.S. Court of Appeals re-affirmed the invalidation of claims 1-35 and newly invalidated claims 36-38 of Blackboard’s original ’138 patent. You may recall from my previous post that Blackboard was stalling in the USPTO because they thought their odds would be better in court. I haven’t read the opinion, but from D2L’s post, it appears to be pretty damaging to the patent in the U.S.—perhaps decisively so. Now, that doesn’t mean that Blackboard has exhausted its legal options by any means. There’s the continuation patent, the trade board fight, and the Canadian patent suit, to name a few of the remaining loose ends. But this is, once again, an opportunity for Blackboard to put this brand-damaging fight behind them by quitting the field.
Michael Feldstein is the founder of e-Literate who currently works as the Senior Program Manager for MindTap at Cengage Learning. For more information, see his profile page.
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