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.”

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.

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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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