Wednesday, April 22, 2009

Blackboard files complaint with ITC against D2L

While many were celebrating Earth Day, a new front has emerged in the Blackboard vs. Desire2Learn saga.

Just when we thought it could not get any more complex, Blackboard pulls out another dagger. According to Eric Schweibenz's article on the "ITC 337 Blog", Blackboard has filed a complaint with the U.S. International Trade Commission against D2L stating that D2L has imported an infringing product (based on the original '138 patent which has recently been invalidated by the USPTO).

Bryan Farney provides an excellent introduction to the world of Section 337 violations:
Section 337(a)(1)(B) of the Tariff Act of 1930 declares unlawful "importation into the Untied States, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee, of articles that - (i) infringe a valid and enforceable United States patent . . . or (ii) are made, produced, processed, or mined under, or by means of, a process covered by the claims of a valid and enforceable United States patent."
Farney goes on to explain:
The key distinctions between an infringement action in the ITC and in federal district court are that the ITC may not award damages, and the time frame for ITC proceedings is more expeditious than in many district courts. Furthermore, ITC complainants may in some situations secure temporary and permanent exclusion orders that can be different, and better, in scope than comparable district court preliminary or permanent injunctions.

Another difference between an ITC proceeding and a federal court proceeding is that the filing of a complaint with the ITC does not guarantee that an investigation will occur. The ITC has discretion to determine whether an investigation should take place, and, if it does so, the ITC itself conducts the investigation, with its staff attorneys acting as an independent party in the proceeding.

It appears that this complaint might or might not amount to anything. At worse, it could mean that a quick action by the ITC could lead to a comparatively quick and potentially significant consequence.

Hang on. Here we go yet again.

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