Desire2Learn has filed a response to the Blackboard patent lawsuit. Full pdf here. It's pretty safe to say that D2L disagrees with all the important stuff in the lawsuit. Many of the paragraphs in the suit are answered as follows - "ANSWER: Desire2Learn denies the allegations in this paragraph."
As far of the affirmative part of their defense (meaning their attack mode), they say the following (selected pieces from a much longer list):
- 1. Blackboard’s claims are barred, in full or in part, because the claims of the ’138 patent are invalid under 35 U.S.C. §§ 101, 102, 103, and/or 112.
- 2. The ’138 patent is unenforceable because Blackboard failed to disclose all non-cumulative, material prior art of which Blackboard was aware to the Patent Office during the prosecution of the ’138 patent.
- 5. Upon information and belief, Blackboard, including every individual having a duty of disclosure, disclosed no prior art to the Patent Office during the prosecution of ’138 patent.
- 12. On information and belief, Blackboard’s failure to disclose the Undisclosed e-Learning Products to the Patent Office was intentional and done with deceptive intent.
- 30. Blackboard was aware of the IMS Specification during the prosecution of the ’138 patent; the ’138 patent did not issue until January 17, 2006.
- 31. On information and belief, Blackboard’s failure to disclose the IMS Specification to the Patent Office was intentional and done with deceptive intent.
- 32. Blackboard thus violated the duty to disclose all information material to patentability required by 37 C.F.R. § 1.56 and the ’138 Patent is unenforceable.
- A. Denying Blackboard any relief whatsoever on its claims and dismissing Blackboard’s Complaint with prejudice.
- B. Declaring that the ’138 patent is invalid under 35 U.S.C. §§ 101, 102, 103, and/or 112.
- C. Declaring that the ’138 patent is unenforceable due to inequitable conduct.
- D. Awarding Desire2Learn its attorneys’ fees and costs of suit; and
- E. Awarding Desire2Learn such other and further relief as the Court may deem just and proper.
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