Blackboard's Patent is Down to its Last 30 Days

Last week, Ray Mosteller revived the discussion of the Blackboard-Desire2Learn saga by articulating a number of questions pertaining to the settlement between Blackboard and D2L. One of Ray's questions caught my attention. He wrote, "What ever happened to the USPTO rejection of all claims in the Blackboard ‘138 (Alcorn) patent? Or the USPTO re-examination of the ‘138 patent. Is this still ongoing? Is there a chance that the USPTO could revive the ‘138 patent?"

Last we heard, the US Patent and Trademark Office was re-examining the patent and had issued a series of "non-final" decisions that invalidated all 44 (then later all 57) of Blackboard's claims related to the '138 (aka Alcorn) patent. I assumed that Blackboard had appealed that decision, but I cannot find evidence of that.

My attempt to uncover the current status of the patent re-examination led me to the attorney, Michael Spiegel, representing the Software Freedom Law Center and its ex parte re-examination request with the USPTO. Spiegel graciously informed me that a final Right of Appeal Notice has been sent to Blackboard regarding their last opportunity to appeal the USPTOs decision to overturn all claims in the '138 Alcorn patent. Blackboard has 30 days from March 12 2010 to file their appeal. If they do not, then the re-examination is complete and the USPTO decision is mercifully declared final.

In reviewing the publicly available Right of Appeal Notice, this statement by the USPTO nicely summarizes the nature of this infamous patent:

"The claimed invention is merely a combination of old elements...The combination is an adaptation of an old idea using newer technology that is commonly available and understood in the art and thus obvious."

Note: I've posted the USPTO's Right of Appeal Notice here (PDF, 1.3 MB). The document contains a record of all the arguments made regarding the existence of prior art to invalidate Blackboard's claims.

Update:
Many thanks are also owed to SFLC's former patent attorney Richard Fontana who "did all the heavy lifting in this case", according to Spiegel.

Jon Mott: Bridging the Gap Between the PLE and the LMS

Back in August 2009, Jon Mott gave this presentation at OpenEd 2009. He reports on their work at BYU to create a new learning environment based on PLE principles.

I strongly encourage anyone interested in the future of the CMS/LMS to watch this presentation. I took away the following points:

1. PLE values (student-centric, openness) more closely match the values of the institution than do the values of the CMS

2. Lack of continuity for the learners from semester to semester exists in the current CMS. We typically turn off access to course sites at the end of the course. It’s the “chief demerit of the course management system” Mott says.

3. Stand-alone gradebook. This is a highly important progression in the future of the course management system. Integration with various systems will be key, but de-coupling this critical tool is the first step.

4. Get rid of the dropbox? He says that instructors can now tell students, “Don’t upload your paper, just give me the URL for where your paper lives on the web”. Furthermore, he says, "Maybe one of the requirements for being digitally literate in 2009 is being able to publish a web viewable document”. Bingo. How many institutions offer easy ways for students to publish on the web? However, I do know that many instructors value the ability to zip and download all the submitted papers for an assignment in order to more efficiently read and grade (likely after printing!) — something the digital dropbox currently offers.

Good stuff! I’ll be following Jon Mott and his work at BYU more closely these days. Some of my colleagues saw him speak at ELI 2010 recently and posted their summary and comments here.

"Live" updating of active Desire2Learn course sites

Thanks to a great idea from Alan Levine (aka CogDogBlog), here is a live look at the number of Learn@UW/Desire2Learn course sites activated for this fall semester:



This is a chart published from a Google spreadsheet. I'll be updating the spreadsheet periodically and this chart should dynamically reflect the changes I make. Very cool.

"If we're disconnected, we can't Twitter. If we can't Twitter we don't exist"

Today's attacks on Twitter and a reported slowdown of Facebook changed the day for many.



Today reminded me of this video I had seen earlier:



It's a good reminder to keep our social connections real and pay attention to how true friendships are formed and maintained.

Oh, and if anyone wants to follow me, I'm @jbohreruw.

;-)

The Spinmeisters

You gotta love the quotes in Campus Technology's coverage of the federal appellate court's decision in favor of Desire2Learn.

From Blackboard's Matthew Small:
"...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. This is really just a blip in the overall intellectual property dispute between Blackboard and Desire2Learn. I don't think it changes their prospects as a company one bit."

And from D2L's John Baker:
"It is a definitive win. We are celebrating this victory for Desire2Learn and education as a whole. We are incredibly appreciative of the support we have received from the educational community. We look forward to the day that Blackboard will return the judgment paid."

Hmmm.

Great news for Desire2Learn

Desire2Learn just announced:

"We are pleased to announce that the United States Court of Appeals for the Federal Circuit has ruled on the appeals that resulted from the trial in Texas. The Federal Circuit has ruled in favor of Desire2Learn across the board and confirmed that all 38 patent claims asserted by Blackboard are invalid."

D2L CEO John Baker proclaimed via Twitter:

"We won our federal circuit appeal! Posted on #Desire2Learn patent blog at http://tinyurl.com/kro8vn Thanks to all of you for your support!!"

This could be the first in a series of victories for D2L in their litigation saga with Blackboard that began in 2006.

The findings from the appeals court apparently will be useful to future patent applications in their construction of "means plus functions" claims.

Self-proclaimed as "The Nation's Leading Patent Law Blog" states:

"Defendant Desire2Learn wins a complete victory (after a few million in attorney fees)."

Update: D2L files complaint against Blackboard

Update: The complaint filed by Desire2Learn on July 6 2009 reveals a lot of interesting information including the fact that Blackboard has just been issued another patent (#7,558,853) -- another extension to its two previous LMS patents ('138 and '396) which are not only controversial, but also currently being contested in the courts.

D2L posted their explanation of filing for this "Declaratory Judgment" against Blackboard. This action is an attempt to prevent Blackboard from further lawsuits against D2L under their latest patent ('853). D2L is formally appealing to the courts for protection due to "the existence of substantive, actual controversy".

From D2L's complaint:

This history of Blackboard’s strategy of litigation and intimidation creates a substantial controversy between D2L and Blackboard of sufficient immediacy and reality to warrant the issuance of a declaratory judgment as to the noninfringement and invalidity of the ’853 patent.