Blackboard and D2L Patents

The Blackboard/D2L patent fight seems to entered another chapter in recent weeks. Desire2Learn has recently announced that Blackboard has again brought suit against D2L in Texas.

The basis of this suit is a new patent that Blackboard was awarded recently. The patent isn’t really new but is a continuation patent based on the original one that was at issue in the first lawsuit (and in the patent re-examination requests by both D2L and the Software Freedom Law Center). You’ll remember that the re-examination initially resulted in all claims of that patent being rejected. As part of this process Blackboard is able to change the wording of the patent to make it acceptable to the USPTO.  Apparently they’ve done so successfully.

I’ve briefly read the new patent and, while the language is substantially different, it seems to cover the same general territory that was at issue in the original lawsuit–the ability for the system to assign different roles to the same user in different courses under the same login credentials. I wrote about this previously. Of course it is entirely possible that the new patent allows an additional line of attack against D2L’s product–we’ll have to wait for more details to know for certain. If I were planning to sue D2L a second time I think I would try to find new avenues of infringement–especially since D2L has modified their product to attempt to stop infringing on the original patent. If you’re interested in comparing the language the new patent is #7,493,396 and the original is #6,988,138. Both are available on the USPTO website.The D2L response has been, so far, in the realm of marketing and public relations. The have challenged Blackboard to drop the lawsuit. In response D2L will donate $1 million dollars to non-profit schools, some of which would be in the Washington DC area where Blackboard is based. And, of course, Blackboard is invited to join in with a donation of its own. This is a clever response, I thought, although a cynic would note that it is less expensive than the legal battle would be. Still, I think it emphasizes that scarce resources could be going somewhere other than lawyers. Michael Feldstein’s blog post has a good summary of D2L public letter to Blackboard.

I will note that Blackboard has added the new patent to the list of patents on their patent pledge page, so open source projects like Sakai are protected from this new patent. Bb did this without any request from any of the open source projects (as far as I know), which I appreciated.

I’m unsure as to whether the Software Freedom Law Center plans to file a rexamination request or take other action on the basis of this new patent. If my knowledge of this changes or if the Sakai Foundation decides to request its assistance again I will, of course, let you know.

In the meantime, the following exerpt from an official statement from the Sakai Foundation last April still reflects my personal feelings:

In 2005, multiple companies and open source communities were productively innovating and competing to provide a range of educational tools. It is widely believed that the patent lawsuit impeded this healthy marketplace. At a time when there is considerable public pressure on the cost of education, this multi-million dollar patent distraction is not helpful. ATutor, Moodle and Sakai all urge a definitive end to this distraction that has been harmful to the free expression of ideas and tools for education.

I’m sorry this hasn’t been resolved one way or another and I wish that D2L andBb could settle their differences without these continued legal battles. There doesn’t seem to be much hope for this in the short run though. The end of this story is nowhere in my line of sight.

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