Well, it has been one week and four days since we (the Minnesota State Colleges and Universities system) upgraded to Desire2Learn’s version 8.3. While upgrading to this latest learning environment brought the promise of a number of feature enhancements, the impetus behind getting us [and the rest of D2L's American clients] to this latest version – in record time – was to be able to keep the doors open on our mission-critical web-based learning environment for our system’s 200,000+ users. [We get over 20 million hits a day during the academic year]. Version 8. 3 WAS the wormhole to an alternatate patent infringement-free universe. [See my prior posts for the two-year Blackboard vs. D2L lawsuit history.]
The ink isn’t dry yet on our change document and Blackboard is back in the ring. It it took only one week and two days post our version 8.3 upgrade for them to re-enter the Texas court system, this time with a contempt motion. Blackboard claims the 8.3 learning environment “did not sufficiently correct its software to remove code and features that infringe on Blackboard’s e-learning patent.”
I just finished reading what is probably the best and most informative article on this 2-year battle and recent legal action, “Blackboard Continues Pursuit of Desire2Learn,” written by David Nagel in Campus Technology (June 18, 2008). In the article he asks and gets answers to some burning questions we have all bandied about. Here’s a teaser for you:
BB keeps saying that should Desire2Learn “not prevail with its 8.3 attempted design-around, or should they not survive financially,” they would be committed to working with D2L’s clients to make sure they find a solution that doesn’t interrupt their online programs. Well, Nagel has the chutzpah to ask BB executives just what they mean by this, if not the obvious.
How about this one? Would BB go after individual institutions or schools who continue to use D2L? You’ll have to read the article to find out (clue: p.3).
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In an interesting turn of the tables, Blackboard now finds itself in court on the defense side of things. TechRadium Inc., a Sugar Land, Texas-based technology company, filed a patent infringement lawsuit Monday May 19th against Blackboard in U.S. District Court for the Eastern District of Texas. TechRadium is claiming that NTI Inc., a recent Blackboard acquisition, is selling products which are in violation of TechRadium’s patent.
The lawsuit involves a mass communication messaging system, something campuses nationwide began implementing immediately after the Virginia Tech incident. TechRadium’s messaging system allows for the sending of a single message to mulitiple types of devices. One message can be sent to “cell phones, pagers, standard landline telephones and e-mail,” according to TechRadium’s complaint. Before TechRadium was on the scene, company officials claim, mass messaging systems required the sending of separate messages for each type of receiving device. With TechRadium’s technology, multiple messaging was eliminated, streamlining the burdensome device-tracking and message-sending processes.
TechRadium is seeking compensation for “lost profits, reasonable royalties and other litigation-related costs,” though no dollar figures have been set. NIT, Inc. also is seeking an injunction against Blackboard to stop “future sales of the alleged infringing products”. Compensation for royalties, and injunctions…where have I heard those words recently?
-Source: Washington Business Journal, June 4, 2008
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What was supposed to have been announced on May 11th came through as late-breaking news yesterday, regarding the Blackboard-D2L patent lawsuit.
During a telephone hearing late today [May 6], Judge Clark granted an extension of the stay of the injunction he entered in March. The Court granted an extension through June 11. More information will follow once we receive the Order from the Court. (From the Desire2Learn Patent-Info’s Blog).
This is good news for the faculty and students of Minnesota State Colleges and Universities who will be able to continue using our current version of our enterprise-wide instructional management system (D2L) until our scheduled upgrade to version 8.3 in early June. The stay will allow D2L to support its American clients with the upgrade to 8.3, which most are expecting to have completed by early June. Had the stay had not been granted, D2L would not have been able to support its clients on any versions other than 8.3, but more importantly, they would have been precluded from assisting clients with the upgrade (which — do you see the Catch-22 here –only D2L can do), Why? Because upgrading to 8.3 meant they would “touch” versions 8.1 and 8.2, which are part of the upgrade path.
While the system was preparing for many scenarios, including “worst case,” this ruling takes an immense pressure off of everyone concerned while getting clients (including our massively huge enterprise application) to the new version. At least until any future rounds of legal actions are undertaken by Blackboard assessing whether 8.3 indeed stands up to officially being free of patent infringements. But let’s not go there…yet. Instead, I’ll try to focus on D2L’s assurances posted in their blog:
We will be working closely with our clients to help them upgrade to Learning Environment version 8.3, our official design-around version.
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T-shirt from The rSmart Group
In spite of everyone’s incredulity, the BB patent monster suit against D2L took hold, at least for now. This past Friday a Texas federal jury ruled in favor of Blackboard and awarded them $3 million in damages.
Jared M. Stein in his Flexknowlogy blog says it as well as anyone:
“Does this apparent magnanimity bolster my favor for Blackboard? Certainly not; the position is superficial at best, and Blackboard knows it. Anyway, it’s beside the point: though I personally lean towards open source software for educational technology, I am (a believer of) free market competition and consumer-driven innovation of services and products is important to me. Blackboard’s overblown patent claims are an affront to innovation and competition, taking advantage of systemic failures in U.S. Patent regulations.”
Ditto, and thank you Jared.
John Baker, Desire2Learn president and CEO, quickly prepared a statement and issued it to all of its clients, of which we are one: “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. With your support and that of the entire educational community, we were able to present a strong case. While we are disappointed that the jury did not agree with our position, we will continue to challenge the patent’s validity and Blackboard’s charges of infringement. We are currently evaluating our next steps.”
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Here are some quick resources regarding the patent infringement suit filed by Blackboard against D2L in the summer of 2006. Most recent info on top.
September 19, 2007 eSchool News: Online-learning patent dispute heats up (“Despite recent developments in the case, Blackboard’s suit of rival Desire2Learn is likely to drag on quite a while, experts say”)
Desire2Learn Patent-Info Blog
The Nose: Information Technology in Higher Education Blog: Al Essa’s blog posts on the patent suit
November 30, 2006 patent suit article involving the Software Freedom Law Center who filed a re-examination request on behalf of three open source learning management systems: Sakai, Moodle and ATutor
Even the BBC News picked up the original patent suit story, August 2006, Patent battle over teaching tools
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