Tuesday, July 22, 2008

Blackboard court setback

Blackboard and Desire2Learn have been back in court. The former asked for the latter to be held in contempt because the changes to its software to comply with the court's previous order to that effect are not to Blackboard's liking.

Desire2Learn say:

"We just received word from Texas. The Court denied Blackboard's Motion for Contempt. We anticipate we will receive the Court's written Order in a few days and will post it when we receive it."

Think about this ridiculous litigation for a minute. Blackboard get a nonsensical patent and immediately sue their biggest (though comparatively very small) competitor, Desire2Learn. The case goes through the Eastern District Court in Lufkin in Texas, (bearing in mind Blackboard's headquarters is in Washington DC and Desire2Learn is a Canadian company, the obvious place for a lawsuit is Texas), and a jury awards millions in damages for patent infringement.

Then the US Patent Office, having reviewed the patent, issues a preliminary ruling declaring it invalid. This, however, has no impact on the court case. The losers still have to pay damages and the judge, with little room for manoeuvre following the jury decision, orders them to change their software so that it doesn't infringe Blackboard's patent. Desire2Learn comply within the few weeks the judge has given them, updating the software and their customer base installations, since the judge has said the old infringing software can't be sold or used.

Blackboard are not happy that the changes go far enough and go back to court demanding their competitor gets held in contempt for not changing their product enough so that it no longer infringes a patent which has been formally declared invalid. And they can get away with it because the invalidation of the patent can't be taken into consideration in court until the process within the Patent Office has been exhausted through all possible appeals.

It will be really interesting to read what the judge has had to say about the latest action when his ruling becomes available. At best it's possible the judge has decided that the latest version of Desire2Learn's software can't be shown to be infringing Blackboard's invalid patent, in which case Blackboard would have to start a new patent infringement suit from scratch to take it down. At worst it could just be a procedural delay. We'll just have to wait for the details.

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