End game in Bb-D2L patent fight?

So Blackboard has lost another battle in its patent war with Desire2Learn. The original patent claims been invalidated by the USPTO and the courts and yet, at the same time, there are still four other fronts open (see the good summary on D2L patent blog).

As things move forward, the question increasingly becomes “what is Blackboard hoping to accomplish?”  It seems to me there are only a few possibilities:

  1. Blackboard thinks it will be victorious and this will be a good investment of shareholder resources.
  2. Bb wants to damage D2L specifically. Although they may not make back their investment in the legal action, they feel it is worth it to make a smaller competitor spend scare financial resources on legal action instead of product development, sales or marketing.
  3. They believe that D2L has deliberately violated their valid intellectual property and, regardless of the expense to Bb shareholders, think it is worth fighting in the courts to prove that and defend themselves.
  4. They want to intimidate the others in the industry in some way.

#1 seems increasingly unlikely (Michael Feldstein has a recent post regarding the financial impact of the latest ruling).  And with the acquisition of Angel and the open source patent pledge providing protection to Sakai, ATutor and Moodle, it seems increasingly hard for me to believe that #4 is a goal. And of course these goals aren’t all mutually exclusive.

But I shouldn’t speculate about motivations.

One of the results of the Angel acquisition is that Ray Henderson has been installed as president of the Blackboard Learn division. Ray has been blogging occasionally, which has been quite nice to see. It would be great to hear from Ray on this issue.  There are all sorts of reasons he probably can’t comment, even if he wants to. But it would be extremely helpful if he could help figure out how to resolve this long running dispute. Or at least give the industry an idea of whether Bb is going to continue to pursue this and, if they are, what they are trying to accomplish.

As a bit of history, in 2007 the Sakai Foundation expressed its concerns about Blackboard’s U.S. patent number being overly broad. We believed then that re-examination of this patent in the courts would invalidate those claims and the Software Freedom Law Center filed a reexamination request with the USPTO. Those claims were, in fact, invalidated by the USPTO. And now the Federal Circuit Court of Appeals has ruled in favor of Desire2Learn in the original case that started this sequence of events.

The Sakai Foundation reiterates its hope that all of the organizations and individuals interested in educational technology will continue to focus our collective energies on improving software. As we said previously (at the time of the preliminary patent rejection):

This hopefully marks the beginning of the end of this unfortunate and distracting chapter in the evolution of learning and collaboration software. 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.

2 Responses

  1. Matt Small, Bb’s Chief Business Officer, provides the official answer to the question in this Campus Technology article:

    “The important fact here is that we are asking Dersire2Learn to either pay a reasonable royalty or make a valid workaround rather than using our intellectual property. And we believe they are infringing multiple patents of ours, and we will continue to pursue what we believe is a fair result in the appropriate venues.”

  2. […] Patent Prospector summarize the opinion. Inside Higher Ed provides commentary about the decision. Sakai Blog speculates about Blackboard’s motives and the future of Blackboard’s numerous patent […]

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