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Blackboard Continues Pursuit of Desire2Learn
6/18/2008
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.
Regardless, Blackboard asserts, and the court appears to have agreed, that the key aspect of the claim is not the "predetermined" wording but the aspect of users having multiple roles across multiple courses using a single login and password, which Desire2Learn did not address in 8.3 and does not claim to have addressed.
"Basically they've just erased the terms 'user' and 'student' in the system and made some cosmetic changes," Blackboard's Small said. "But the underlying ... actual software itself is the same. I think what they were trying to do was create plausible deniability for their clients because they were on 8.2[.2], which the court injunction states is infringing and is barred by the injunction."
Blackboard also claims that Desire2Learn has not removed infringing functionality with regards to claims 37 and 38 of the patent, involving dropbox functionality of the Learning Environment.
Blackboard, in its motion Tuesday, asked the court to impose sanctions against Desire2Learn. "Desire2Learn is flouting the permanent injunction. The Court should use its inherent and statutory powers to sanction this contempt," the motion read. In particular, Blackboard is asking for:
- Recognition that Learning Environment 8.3 violates the permanent injunction;
- An mandate that Desire2Learn notify legal counsel of all U.S. customers and prospective customers of the order;
- A fine of $23,000 per day from June 11 to the date of the court's order;
- Payment of attorney's fees; and
- An additional payment of $23,000 per day following that court order that "Desire2Learn uses, sells or offers for sale version 8.3 or associated services."
Fighting Words
Meanwhile, even as Desire2Learn is vowing to defend itself "vigorously," Blackboard is seeing openings in the market.
Should Desire2Learn fail in its efforts, said Small, "... Blackboard is committed to avoid[ing] disrupting Desire2Learn's clients. Should Desire2Learn not prevail with its 8.3 attempted design-around, or should they not survive financially or for any other reason, Blackboard is committed to working with their clients to make sure we find a solution that doesn't interrupt their online program."
When asked whether this meant Blackboard wanted to take over Desire2Learn's clients, whether Blackboard wanted to supply a solution to Desire2Learn's clients, or whether Blackboard wanted Desire2Learn to pay a licensing fee, Small responded, "What that means is that it would be up to the school, and we would work with the schools to figure out what best met their needs.
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