A few of the usual suspects have pointed to this one already, but in case you haven’t seen it yet, Barry Dahl has a fantastic podcast interview up (about 30 minutes) with Michael C. Smith, an intellectual property lawyer in the district where the case was filed and author of EDTexweblog. Both interviewer and interviewee did a terrific job of really illuminating some of the legal nuances.
There is one point that bears revisiting, though. Michael, in answering Barry’s questions about the USPTO re-examination, appeared to assume that the re-exam was ex parte. This is a perfectly reasonable assumption, since ex parte is far more common a challenge type than inter partes. Nevertheless, the D2L/SFLC challenge is actually inter partes (or, to be more specific a weird hybrid of ex parte and inter partes that mostly follows inter partes rules). Some of Michael’s answers would probably be unaffected by this difference, e.g., the likelihood that the USPTO ruling will affect the prior court ruling. But some, like the probability of a successful USPTO challenge, how this challenge fits into a larger litigation strategy, and how the judge might react to the challenge going forward, could. I’d be really interested to hear whether any of Michael’s answers change based on this information.
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