Patent Office rejects Blackboard patent & D2L releases workaround

The D2L patent blog has been humming the past few days.

First, it looks like the U.S. Patent & Trademark Office has rejected all 44 of Blackboard’s patent claims. The patent office released a non-final action, which means it ain’t over yet as both parties can still comment before the final decision is made.

However, regardless of the claim, D2L has gone ahead and released a new version of their LE, 8.3, which President & CEO John Baker says works around the patent issues.

Our Learning Environment 8.3 underwent external third-party review
after we devoted significant resources to ensuring that 8.3 was outside
the scope of the method claims of the patent. We are confident that
this version does not infringe the asserted claims.


Desire2Learn loses Blackboard patent case

D2L President John Baker posted the news on the D2L patent blog late Friday afternoon. Blackboard has won the patent lawsuit against D2L. D2L has been ordered to pay Blackboard $3 million US in damages.

Now, I’m no lawyer. And even though I have been following this case with interest partly because we are a D2L institution, I don’t know all the intricacies of the patent claim beyond the what I have read at places like No Education Patents, the D2L patent blog and various blog postings. But in my mind, this really stinks, and I am not alone in this sentiment.

This worries me on a number of fronts. First, being a D2L customer this may have implications. Perhaps not immediately, but unless D2L can find some sympathetic and sane ears at the US Patent Office (who will be reviewing the patent claim), there could be rough times ahead for D2L. In his letter, John Baker has made an assurance that:

There is no immediate threat to you our clients. We will work with you
to ensure there are no future issues. We are financially sound and are
confident of our ability to work through this matter.

Maybe I am reading too much into the word “immediate” in that statement and my FUD-ish tendencies are showing. But as a client, I am concerned and troubled by this turn. (update: maybe I don’t have to worry too much, being in Canada, according to this article.)

After my self serving interest, I’m really astonished that Blackboard can now claim it “invented” many of the features of an LMS, which, as this excellent analysis by Alfred H. Essa at Minnesota State College clearly shows is a folly. If this is the case, then can we soon expect to see a number of other software companies in other industries launch similar claims using this decision as the basis?

For example, one of the patent claims upheld was the claim that says Blackboard created a method that allows instructors to post a student grade to a file on a server accessible only to that student (claim #39 for those of you keeping track). Well, what Student Records System doesn’t have a web interface that allows that? Can we now expect to see Blackboard sue Datatel or another SRS that allows that functionality?

Claim #40 that allows instructors to perform a statistical analysis on a student or group of students grades? Maybe Microsoft should be worried because I know a heck of a lot of instructors that do grade analysis using Excel.

Claim #43 that says Blackboard provides “…an asynchronous communication tool accessible to student users enrolled in the course for enabling asynchronous communication amongst student users.” Insert ANY bloody email or discussion group software provider here. And the next claim says the same thing for synchronous products.

The list goes on. It’s a crock. Plain and simple.

Who first invented the idea of authenticated users having access to specific resources? Quick, sue Blackboard! Judging from this farce you have a strong case.