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Is Desire2Learn in the Clear? Blackboard Says 'No'
7/21/2008
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Desire2Learn is reporting the first bit of (tentatively) good news to come out of Texas since Blackboard initiated its patent-infringement suit against it almost two years ago to the day. According to Desire2Learn, the United States District Court for the Eastern District of Texas, Lufkin Division, has denied issuing sanctions in Blackboard's motion for contempt. But Blackboard told us Desire2Learn definitely is not in the clear.
Blackboard filed its motion June 17, arguing that Desire2Learn had not fulfilled the obligations of the court, which had found Desire2Learn to be infringing on Blackboard's controversial e-learning patent and barred Desire2Learn from selling its Learning Environment 8.2.2 (or earlier) in the United States. In response, D2L released Learning Environment 8.3 in March as a "design workaround." Company representatives said they believed strongly that the new version addressed the patent issue, but Blackboard's chief legal officer, Matthew Small, told us he did not think it went nearly far enough, saying that the changes were merely "cosmetic" in nature.
Desire2Learn's workaround focused on the "predetermined roles" and "predetermined level of access and control" aspects of the patent. The U.S. Patent and Trademark Office originally awarded the patent based on this wording; it is unclear whether this claim would have been granted without such qualifiers. Even with the qualifiers, since the time the patent was granted, the USPTO has reversed itself and rejected all of the claims in the patent upon reexamination, but final rejection of the patent, should it come to that, is far from complete, and the patent remains in effect.
Details are scant at the moment. In a blog post Monday afternoon, Desire2Learn wrote: "We just received word from Texas. The Court denied Blackboard's Motion for Contempt. We anticipate we will receive the Court's written Order in a few days...."
We spoke with Blackboard's Small Monday evening, and he told us a different version of the story, saying that whether the new 8.3 release infringes or not is still up in the air from a legal standpoint.
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