Thursday, January 25, 2007

Blackboard Re-examination

Very cool!! Today, the USPTO ordered a re-examination of the patent awarded to Blackboard for their not-novel Course Management System. Back in November, the Software Freedom Law Center filed a Request for Re-examination with the USPTO. According to the Law Center, "The Patent Office found that prior art cited in SFLC's request raises 'a substantial new question of patentability' regarding all 44 claims of Blackboard's patent." (That's a photo of the USPTO building, courtesy of patrickmmoore)

What does this mean? You never know for sure. The Law Center says that "A re-examination of this type usually takes one or two years to complete. Roughly 70% of re-examinations are successful in having a patent narrowed or completely revoked."

One particular phrase in the re-exam order is particularly telling: "A reasonable examiner would consider the above prior references important in making a decision as to the patentability of claims 1-44 of the Alcorn (Blackboard) patent." (page 4) There's the rub ... are there any reasonable examiners in the USPTO?

Desire2Learn has also filed a request for re-exam, but that might not prove important since the re-exam has already been ordered today. This is definitely not yet a dead issue, but it certainly looks like a step in the right direction. The BlackCt suits must be squirming a bit tonight but I bet the D2L folks will sleep a little more soundly.

My prediction? FWIW (which is nothing, absolutely nothing), I think that the re-exam absolutely will result in throwing out the patent. Blackboard received the patent because the USPTO examiners were asleep at the switch and didn't do their due diligence, and of course Blackboard didn't honestly talk about prior art. If a "reasonable examiner" actually gets involved this time ... it's over for Blackboard.

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