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Blackboard Continues Pursuit of Desire2Learn
6/18/2008
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[Update 2, 2:30 p.m. PDT] As Desire2Learn predicted last week, Blackboard is indeed continuing to pursue its rival, this time with a contempt motion that claims Desire2Learn's Learning Environment 8.3 did not sufficiently correct its software to remove code and features that infringe on Blackboard's e-learning patent. D2L released Learning Environment 8.3 in March as a "design workaround" in response to losing a patent infringement suit to Blackboard in February.
New Legal Action
Blackboard filed its motion Tuesday afternoon in the United States District Court for the Eastern District of Texas, Lufkin Division. The company supplied us with a copy of the motion, which states, among other things, "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...."
We spoke with Matthew Small, Blackboard's chief legal officer, who characterized the changes in D2L Learning Environment 8.3 as "cosmetic" with regard to addressing the patent infringement issues.
"We have had our experts extensively review Desire2Learn's [Learning Environment] 8.3, which they purport to be their workaround upgrade," Small said, "and it is not colorably different rom 8.2.2, which is covered by the court injunction."
Desire2Learn has not responded to us directly about the contempt motion. However, in a blog post, the company did mention that my request for a comment was the first they'd heard about it and that they have not yet been able to review the motion.
In the post, the company reported, "We will be posting the papers that have not been filed under seal as soon as we can. We have not yet had the opportunity to study the filing, but we did anticipate that Blackboard would file for contempt. We are disappointed that Blackboard has chosen to continue this litigation, particularly in light of the rejection of all 44 claims by the Patent and Trademark Office.
"We will fight this motion vigorously."
At issue for the most part is claim 36 of Blackboard's patent, which reads verbatim as follows:
| An method for providing online education method for a community of users in a network based system comprising the steps of: a. establishing that each user is capable of having redefined characteristics indicative of multiple predetermined roles in the system and each role providing a level of access to and control of a plurality of course files; b. establishing a course to be offered online, comprising i. generating a set of course files for use with teaching a course; ii. transferring the course files to a server computer for storage; and iii. allowing access to and control of the course files according to the established roles for the users according to step (a); c. providing a predetermined level of access and control over the network to the course files to users with an established role as a student user enrolled in the course; and d. providing a predetermined level of access and control over the network to the course files to users with an established role other than a student user enrolled in the course. (U.S. Patent No. 6,988,138) |
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