D2L Blog

Blackboard vs. D2L Patent Litigation

Greetings all!  Long time no blog!  We've been very busy ramping up for the first round of course migrations, so I haven't had a lot of time to get out here and post on current events; however, with all of the events as of late, I felt I needed to start again so that everyone is aware of where we are at in the project.  But before I post on that, I wanted to talk about the recent ruling in the Blackboard vs. D2L Patent lawsuit.

First let me preface this with a statement:  I am not a lawyer (from this point forward to be abbreviated as IANAL).  Any opinions enter into the discussion below are formulated from my experience, not from any professional legal training, nor do they necessarily represent the legal perspective of USD, the SDBOR, the State of South Dakota, the United State of America, the continent of North America, the Northern/Western Hemisphere, Earth, the Sol system, the Milky Way, etc.

As you are likely now aware, Blackboard recently won a patent case against D2L.  For more information on the specifics, The Chronicle has an excellent overview:  http://chronicle.com/free/2008/02/1828n.htm.  That said, I have been receiving a lot of questions of how this will impact us, so I wanted to share some information with everyone:

• As the SDBOR LMS Task Force was evaluating the vendors, we were aware of this issue and D2L did disclose this in their response to our RFP.  They also provided the following website, which is a blog about the litigation:  http://www.desire2learn.com/patentinfo/. They have been very open about this and very confident in both their belief that the patent is not valid and in their ability to carry on in their legal battle.
• Rather than rehash the history and results here, again, The Chronicle has a very good article regarding the matter:  http://chronicle.com/free/2008/02/1828n.htm.
• Well, OK, I’ll rehash a little bit here:  as per the article above, Blackboard does not plan to go after any schools using D2L, nor those opting for open-source solutions and have supposedly signed a legally binding document stating this.  That does not give me a warm fuzzy, but it is logical in that if they start suing their customer base, those customers will revolt—think RIAA here, biting the hand that feeds them, etc.
• More rehash:  the USPTO is in the process of re-examining the patent.  IANAL but I do not think that the obviousness and prior art requirements of a patent will be satisfied in this case and I suspect that it will be revoked.  Basically, BB patented something similar to polymorphism and applied it to a learning management system, which seems rather obvious. Specifically, what they have patented is the ability of a user to have different roles in the LMS: they can be an instructor of one course, a student in another, etc.  However, if the USPTO upholds the patent:
• D2L can opt to appeal the case in front of the Court of Appeals for the Federal Circuit.  Again, IANAL, but I suspect they will not have much success here as a lower court—albeit in a very patent-friendly district in Texas—ruled against them and the USPTO upheld the patent.
• We have an indemnification clause in our contract which shifts the liability to the corporation (i.e. D2L) and not to the SDBOR.  IANAL, but Jim Shekleton—SDBOR attorney—is and he reviewed the contract so I suspect that this clause is sound.
• Another clause in our contract is that D2L has to place all of their source code for the LMS into escrow.  Should they go belly up, we get that source code in order to maintain the system.

Again, IANAL—have I said this enough?—but I believe that the worst case scenario here is that D2L loses that patent and is required to pay royalties to Blackboard.  Right now, that has amounted to just over $3 million + legal fees.  I do not see D2L going away anytime soon—just the litigation alone could go on for years—so we should have ample time to re-evaluate our needs over the next four+ years—we are nearly a full year into our five-year contract with D2L—and if we absolutely need to, we can move to another system.

Posted at 10:42AM Mar 05, 2008 by Eric James Mosterd in General  |  Comments[3]