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Is Desire2Learn in the Clear? Blackboard Says 'No'
7/21/2008
In its contempt motion, Blackboard had written, "Version 8.3 is not more than colorably different from Learning Environment version 8.2.2, which has been adjudicated to infringe claims 36, 37, and 38 of U.S. Patent No. 6,988,138...."
Small recounted that the judge in the case in reviewing the contempt motion seemed to have agreed with that, saying that version 8.3 is not, in fact, colorably different from version 8.2.2; nevertheless, the judge did not issue sanctions against Desire2Learn, leaving it up to Blackboard to meet the burden of proof that the new version does infringe.
Does this mean a new trial? That isn't quite clear either. But Blackboard is definitely not dropping the matter.
"It's still our position this is not a valid workaround," Small told us. He said Blackboard will be taking the next steps in the matter when those steps become clear. The final order from the court has not yet been issued to either party. What that order says will determine what happens next in the case.
In its contempt motion, Blackboard had been asking for additional penalties against D2L, including:
- Recognition that Learning Environment 8.3 violates the permanent injunction;
- A mandate that Desire2Learn notify legal counsel of all U.S. customers and prospective customers of the order;
- A fine of $23,000 per day from June 11 to the date of the court's order;
- Payment of attorney's fees; and
- An additional payment of $23,000 per day following that court order that "Desire2Learn uses, sells or offers for sale version 8.3 or associated services."
Background on the Patent
Between June 1999 and March 2000, Blackboard filed applications for learning management system technologies with the United States Patent and Trademark Office (USPTO) and was finally awarded patent No. 6,988,138 in January 2006, with several items from previous application removed. The company announced its patent publicly July 26, 2006 and filed a patent-infringement suit against rival Desire2Learn the same day.
In December 2006, Desire2Learn filed a request with the USPTO to reexamine the validity of Blackboard's patent. It was granted that request in February 2007. A similar request was filed ex parte by an organization representing open-source LMS developers, the Software Freedom Law Center. That group's reexam request was also accepted in March 2007.
Upon reexamination, in March of this year, the USPTO, in a non-final action, rejected all of the claims in Blackboard's patent, although the patent is still in effect until a final decision is reached. The timeline for such a final decision is up in the air. Both Desire2Learn and Blackboard have had the opportunity to respond to the rejection. Blackboard's response included filing additional claims with the original patent and urging the USPTO to reject all arguments against the patent. (Further information about the response can be found here.)
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