Comments on: EduPatent Fight As Complicated As Ever

By: Another Victory for D2L, Another Opportunity for Blackboard

Another Victory for D2L, Another Opportunity for Blackboard — Mon, 27 Jul 2009 19:42:55 +0000

[...] 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. [...]

By: anonymouse

anonymouse — Thu, 23 Apr 2009 19:05:33 +0000

The ITC filing argues explicitly that some US D2L customers (those using D2L’s hosting service) should have their access to the D2L software shut off altogether. It calls out Tennessee explicitly. Bb is making a straightforward argument that the ITC should make all of TBR’s LMS use go completely dark, immediately.

Think about that for a second: Bb is petitioning a federal agency to cause immediate, serious harm to American universities.

By: Jeff Bohrer

Jeff Bohrer — Thu, 23 Apr 2009 02:04:23 +0000

And now, here’s yet another wrinkle:

“Blackboard Files New 337 Complaint Regarding Certain Course Management System Software Products”

Link: http://www.itcblog.com/20090422/blackboard-files-new-337-complaint-regarding-certain-course-management-system-software-products/
or http://tinyurl.com/cyx7tz

This one is different as the complaint is filed with the US International Trade Commission….not a federal court, and not the US Patent Office.

OK, Michael…help us understand an ITC 337 complaint!

By: Michael Feldstein

Michael Feldstein — Thu, 23 Apr 2009 02:04:03 +0000

I can’t look at it, Jeff. My employer forbids me from reading patents because my doing so would make them more vulnerable under patent law.

By: Jeff Bohrer

Jeff Bohrer — Thu, 23 Apr 2009 01:49:22 +0000

Not sure if you’ve seen this, but here’s Bb’s second patent (#7,493,396):

http://tinyurl.com/cwh4r7

By: Anon

Anon — Thu, 23 Apr 2009 00:53:19 +0000

Also their recent 10k filing tells exactly how much they have spent in the litigation: “As of December 31, 2007 and 2008, we had capitalized $5.2 million and $8.2 million, respectively, in costs of defending and protecting patents, due to expenses incurred in a suit against Desire2Learn, Inc. in which we have alleged infringement of one of our patents.”

By: Anon

Anon — Wed, 22 Apr 2009 20:08:50 +0000

I wonder if this is leading to Blackboard reducing total compensation for all its staff? Freezing salaries and cutting the matching for the 401K… ouch!

http://www.corporate-ir.net/seccapsule/seccapsule.asp?m=f&c=177018&fid=6279763&dc=

By: Michael Feldstein

Michael Feldstein — Wed, 22 Apr 2009 19:21:59 +0000

Jeff, I can respond to some of your questions better than others. To answer the first question, Blackboard can continue the litigation for a long, long time. I don’t believe there are any mechanisms here that would trigger the Justice Department’s involvement. It’s hard for me to answer the second question with specifics since I can’t look at the new patent. But keep in mind that we’re talking about the law, where the change of a word or two can have significant ramifications. It’s very common for this sort of thing to go on. And I have the least insight of all into your final question. I can only tell you that there’s no good evidence that customers are leaving Blackboard because of the lawsuits.

Now, here’s a related question: What is the attitude of Blackboard’s shareholders toward this legal strategy? Do they see it as profitable or unprofitable for them?

By: Jeff Bohrer

Jeff Bohrer — Wed, 22 Apr 2009 15:35:23 +0000

Thanks Michael for summarizing and working to clarify the issues and events.

I continue to be mystified by a few things in this ongoing drama — the likes of which educational technology has not experienced till now.

1) How long can Bb attempt to put D2L out of business, especially considering D2L’s viability as a competitor was used to support Bb’s case when acquiring WebCT? At what point does the Dept. of Justice enter the picture?

2) How can the USPTO issue a second patent to Blackboard that is very very similar to the original one that the USPTO has now invalidated?

3) For how long will Blackboard customers accept Bb’s litigious nature? When will their customers see the effects of the costs associated with Bb’s lawsuits?