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Exclusive Interview
Desire2Learn CEO Makes Case Against Blackboard Patent, Court Ruling
A conversation with Desire2Learn's John Baker and Diane Lank
3/17/2008
So that's a bit of an example. But John is right. We absolutely challenged the validity of the patent.
Nagel: Were you the trial lawyer on this case?
Lank: Oh no, no. We have outside counsel. I was at counsel table the whole time, but no....
Baker: And I think I was the only corporate representative from both sides that actually sat through the entire trial.
Nagel. Okay. In terms of your legal options, where are you going from here?
Baker: I think the two main things that we're doing right now is, one, we're going to be filing some motions in terms of dealing some judgments as a matter of law with the current judge. And secondly we're going to be putting this in for appeal to take it to a higher court.... We'll have a much better chance of pleading our case there in that forum than necessarily what we had in the jury verdict.
[Baker then went on to praise the efforts of the jury, the judge, clerks, and others involved in the trial at some length. This kind of information can be read at D2L's Patent Information Blog.]
Everyone keeps referring to Blackboard as winning here. But really they only got about 20 percent of what went to the jury and less than 10 percent of what they originally wanted, which was over $50 million, by the way, not the $17 [million] that's been reported so far to date. The judge threw out their willful case before it went to jury verdict....
It was shocking to me listening to our case being presented because there was certain evidence I had never seen until it went into an open trial, and it was incredibly frustrating at the same time to understand what this competitor was doing to get one win against us.
Nagel: Can you give me a timeframe for the motions you want to file and also filing for appeal? You can ballpark it.
Baker: The motions should be probably in within the next week or two. And the appeal, if it's heard, probably within the next year or so.
Lank: Well, back up a little bit: Only if we don't prevail on our post-trial motions will it go to appeal. So if we don't get the remedies we seek through the post-trial motions, then it will go to appeal. Now, I think it's likely it will go to appeal because I expect that the judge won't give us everything we want.
Baker: But we never know.
Lank: But you don't know.
Baker: This judge seems to ... really understand the case a lot better now after ... hearing us talk about it for probably two or three weeks. We have high expectations of this judge.
Nagel: I'd like to talk about the patent a little bit. What's going on with the reexamination? Correct my Latin if I'm wrong, but you filed an inter partes reexam in February 2007?
Lank: No, we filed our inter partes reexam application in December of 2006. It was in February of 2007 that our petition for reexam was granted.
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