Friday, March 28, 2008

Desire2Believe in a Non-Final Action

I've been traveling for the past two days so I'm a little late to the party. But I'm here now!

Wow, that was fast!

Just when I was totally losing faith in our systems of justice and government for about the fifth time in my life; things changed. In the blink of an eye, against all predictions about how long the insanity would drag on – BAM, things changed. Of course I’m talking about Blackboard versus Desire2Learn patent debacle.

What was I losing faith in, you ask?
1) The USPTO (and most of the rest of the Federal government, especially the Bush part) for their gross negligence in granting the patent in the first place. Sure they’re understaffed. Sure they’re underpaid (okay, maybe not). Sure, they can’t possibly check every detail about whether a patent application has a peg leg to stand on (Blackbeard reference, in case you missed it). But how can they issue a patent without at least checking with some industry experts who could have given them a clue that they so desperately lacked?

2) The U.S. Justice system after the Texas jury seemed to be comprised of the only people on the planet (not employed by Blackbeard (at least in theory they’re not BB employees, right?)) who believed that the BB patent was valid.

3) Blackboard and their slimeball corporate tactical team. What unmitigated gall they have displayed throughout this whole process. Nuff said. Read the previous posts for the full rant.
Yep, I had almost totally lost faith in #’s 1, 2, & 3. Now I’m regaining some faith in #1. The other two are still pretty well screwed in my book, but the USPTO is trying to be the comeback player of the year.

On March 25, the USPTO issued a Non-Final Action (in other words a first draft of the upcoming final decision) regarding the Reexamination Request which is actually a combination of the request filed by the Software Freedom Law Center and a separate request filed by Desire2Learn (see D2LPatent Blog).

Unless Blackbeard is able to draw his sword and make the Re-examiner walk the plank, Blackbeard’s Patent Ship is going down. There were ten issues at question in the reexamination, in other words, there were ten reasons proposed as to why the BB patent was all BS. The non-final action states that Issue 10 is adopted as proposed (“essentially,” they say pg. 5) and that issues 1-6 are adopted with modifications. Issues 7-9 are not adopted; therefore they are rejected by the examiner.

Reading the 50-page document has as many twists and turns as a drive over Wolf Creek pass way up on the Great Divide. The examiner rejects many of the claims in request for reexamination, but then even clarifies and strengthens other claims and issues. These are rejected, these are adopted, these are adopted as modified, etc. etc. There’s lots of legalese to wade through, but the graphic below pretty much says everything you need to know.

Now Blackbeard has 2 months to convince the examiner to change this decision, after which D2L and the SFLC will have another 30 days to convince the examiner that he’s the smartest person on the VLE planet.

Of course it's not over until Blackbeard's pirate ship has sunk to the bottom of the Sea of Appeals. The honorable thing would be for them to offer a serious mea culpa - drop their pursuit of holding onto a bogus patent, and start trying to repair their reputation with the education community. Good luck with that.

Prediction: Blackbeard is toast – let’s watch them sink. (Photo of pirate at the sink by Suz~)

Wednesday, March 26, 2008

D2L Reliability Scores Highly

Once again we have student survey results from most of the schools in Minnesota Online by using the Noel-Levitz Priorities Survey for Online Learners (PSOL). The chart below shows the results over the past three years to the following statement:

The online course delivery platform (Desire2Learn or D2L) is reliable. (click photo to enlarge)

The PSOL is the main instrument that we use to gather information from students about the online programs and services that we provide. In two of the last three years, reliability of the VLE platform (we all use Desire2Learn) has been rated as the most important factor out of the 30 (31 this year) questions asked of all students. The satisfaction rating (6.01 in 2008), is also one of the highest scoring. This year it comes in with the 2nd highest satisfaction rating out of 31 statements, with first place going to "Registration for online courses is convenient." (rating of 6.21)

I realize that the reliability factor does not capture all of the pertinent information about a VLE, but clearly it is an important one. Credit for the high student ratings goes both to Desire2Learn for the product development as well as to the MnSCU Office of the Chancellor staff who actually host and troubleshoot the service for our several hundred thousand user account holders.

Congratulations are in order for these high marks related to student satisfaction.

NOTE: the survey uses a 7 point scale where 6.0 is satisfied, 7.0 is very satisfied, 5.0 is somewhat satisfied, and 4.0 is neutral. The other 29 items rated below the D2L item ranged in satisfaction scores from 5.96 to 5.12.

Tuesday, March 25, 2008

Job Offer from Blackboard

Hah!!! Made you look, didn't I?

Okay, I lied. I don't have a job offer to go to work for Blackbeard on their pirate ship that is pillaging all of higher education. But for some strange reason (VERY strange, I'm sure), I spent part of my vacation time daydreaming about going to work for the evil empire. It was absolutely an exercise in self-reflection, self-awareness, and apparently self-loathing.

For reasons that I cannot explain, I asked myself the following question(s). "Self? How much would they have to pay you before you would be willing to take a job at Blackboard?"

As any reader of this blog knows, I LOATHE the business tactics of BlackCT. However, I have met some nice people who work there, and all kinds of people tell me that the company really isn't all that bad, and hey - soon enough they're going to own all of education lock, stock, and barrel - so if you can't beat them, why not join them? Right?

As far-fetched as even I think that this scenario is, it is not without precedent. Several years ago I was a store owner in one of those classic cases of where the big-box retailer was coming into town and pinching out many of the local small business owners. I had a newsletter that I wrote monthly and sent to customers who opted to receive it (snail mailed paper photocopies with real stamps on them - yes, it was a long time ago). In that newsletter I would occasionally (okay, often) take shots at my over-sized competitor who cared nothing about quality and provided lousy service and advice (still true today, on all counts, IMO). They advertised an opening for an upper-level manager in an area that I was eminently qualified to handle. In fact, I have little doubt that I was the best candidate in their applicant pool for that job. I actually convinced myself that they "needed me" in some goofball way, and that I would save them from themselves and rise through the ranks to become CEO or God or at least get a stock option or two out of the deal.

Sure enough, they invited me to the Twin Cities for an interview with the Vice President who would have been my boss if things had gone that direction. I have little doubt that I got the interview not because they were at all interested in hiring me, but because they were interested in having a conversation with the a-hole in Duluth who told everyone who would listen just how evil they were. Let's just say that it was an interesting conversation. Let's also just say that he had copies of every one of my newsletters in his little interview packet. Let's also just say that I didn't get the job offer and shortly after that I returned to academia and the rest is blah, blah, blah.

So, what's the point of all this drivel? The sad point for me is that during my vacation last week I came to the realization that I can be bought, and I've even established the price that it would take. At first I though that there is no job offer from Blackbeard that I would be willing to take. I almost laughed out loud at myself at that one. Of course I would accept some hideous amount of money to go over to the dark side. But would I accept something less than a hideous amount? That was where I really started to reflect deeply on how I feel about where I work, for whom I work, and how much money I make from my work.

So here's the answer. My breaking point appears to be at the level where my salary would increase by 75% over my current level. 75%??? How pathetic is that? I wanted to hold out for at least a 100% salary increase, but I started to realize that I'm just not nearly as scrupled as I would like to be. Scrupled is a word - trust me.

As sad as this makes me, I have come to the following realization. If Blackboard wanted to hire me to help them create a VLE for the future - one that breaks down the walled gardens, one that incorporates technologies that will actually help position students for success later in life, one that allows for new levels of collaboration among students and faculty alike, one that actually DESERVES the huge market share that they currently have - then yes, I can be bought. How freakin' sad is that?

BTW, I have no illusions that there is anything more than a 0% possibility of this fantasy coming true - and I wouldn't even want it to come true - but I did enjoy the exercise of determining where my boundaries are. Now, has anyone seen my scruples? They appear to be lost.

Flickr CC-By photo by zzzack

Friday, March 14, 2008

Seeking Clarity about D2L Work-Around

NOTE: I will be gone for the next 9 days and hopefully totally disconnected during most of that time. Therefore, this will be the last post until the week of March 24.

I've been trying to get accurate information about the process related to Desire2Learn's efforts to stop infringing on the (bogus) Blackboard patent. This is the information that I am relying on so far.

1) Desire2Learn is almost finished with their coding of a design that will NOT infringe upon the Blackboard method related to delivering online educational resources via roles. This new design will be incorporated into version 8.3 (corrected from 8.2.3, thanks John) of the D2L VLE (virtual learning environment).

2) D2L must get a determination about whether their new design is successful in NOT infringing on the patent. That determination begins with Blackboard's "experts" (quotes intentional) who will give their opinions about whether the product infringes or not (anyone care to guess?)

3) Assuming that Blackboard determines that D2L still infringes, then D2L will have their own experts make a determination related to infringement. It seems safe to assume that their expert will determine the product to be non-infringing.

4) Assuming that there are two opposing answers regarding infringement (Blackboard says yes and D2L says no). then Judge Clark will examine the issue and make a ruling. Judge Clark basically has three options: a) he can rule that D2L's work-around doe not produce something that is "colorably different" from the patented technology and hold D2L in contempt of court, b) he can rule that their work-around is colorably different which I believe means that version 8.3 is out from under the dark cloud of the patent, or c) he can rule that it is not clear whether they are still infringing, which will most likely lead to another jury trial or possibly an attempt at an out-of-court settlement and agreement regarding version 8.3 between D2L and Bb.

5) Judge Clark is only bound by the jury findings as they relate to version 8.2.2 and earlier versions of D2L. Therefore, he is free to make a completely separate finding with regard to version 8.3 since that was not covered in any way by the jury trial.

6) People who were in attendance during the injunction hearing have reported that it appears that Judge Clark has a good handle on the issues and the related technologies, based on the statements he made during this proceeding.

Of course I could be wrong

Desire2Pod Cast 17 - ePortfolio Tool #2

This is a recording of a phone interview I conducted with Kenneth Chapman of D2L. Kenneth is the lead product developer for the D2L Virtual Learning Environment. We talk about the features of the new Desire2Learn ePortfolio tool.

powered by ODEO

Some of the topics covered include:

  • General idea of an electronic portfolio
  • Features of the new D2L ePortfolio tool
  • Why build one rather than use existing tools
  • Integration possibilities between D2L VLE and ePortfolio
  • Client planning prior to implementing the tool
  • Plans for future development
  • When will it be available for viewing and use

Thursday, March 13, 2008

Desire2Pod Cast 16: D2L ePortfolio

This is a recording of a phone interview I conducted with Deb Homuth, principal of the Ontario Virtual High School in Canada. Deb was a consultant/advisor for the D2L development team while they were designing and building their ePortfolio tool. It's about 16 minutes long.

powered by ODEO

From their March 13 press release: "Desire2Learn Inc., today unveils ePortolio, a much anticipated new product that enables users to track, record, and reflect upon their progress from K-12, to post-secondary education and beyond. An ePortfolio is a digital repository of artifacts that demonstrates progress and achievement. Pairing social networking and informal learning with the traditional classroom, Desire2Learn ePortfolio provides users and institutions with a customized and personalized learning journey."

Personalized Learning: "Today’s users demand a personalized learning experience that extends beyond the traditional classroom boundaries to include social networks of peers, evaluators, and even external experts. ePortfolio uses Web 2.0 standard interface components such as a dashboard, tagging, and inline help to engage users. Desire2Learn ePortfolio also allows users to control what goes into their portfolio, how items are organized, and when items are organized and presented. The user’s ability to publish anything within the ePortfolio creates a complete view of their learning journey. Assessments and comments using rubrics can be applied to any of the diverse artifacts, reflections, presentations, and collections within the ePortfolio to provide a comprehensive perspective of the learning journey."

Another podcast about the ePortfolio tool will be recorded tomorrow with Kenneth Chapman, lead developer at D2L.

Tuesday, March 11, 2008

What the Injunction Says

From the injunction signed by Judge Clark on 3/11/08: Desire2Learn (is) hereby restrained and enjoined... (after a 60-day stay)

"from using in the United States, offering to sell for use in the United States, or selling for use in the United States, either alone or in combination with any products, services or systems: 1. the method of providing online education implemented in accordance with the Desire2Learn Learning Environment (version 8.2.2 and earlier versions)"

"Desire2Learn is further restrained and enjoined from inducing infringement of claims 36, 37 and 38 of the ’138 patent by encouraging, supporting, aiding, or abetting the use in the United States of: 1. the method of providing online education implemented in accordance with the Desire2Learn Learning Environment (version 8.2.2 and earlier versions) heretofore marketed by Defendant; and 2. all other methods for providing online education not more than colorably different therefrom;"

This last paragraph was not expected. As I read it , after the 60-day period has expired, D2L version 8.2.2. and all earlier versions cannot be used in the United States. Please correct me if I am reading that wrong. It could be that this piece will go away if the two parties agree on a royalty rate for the use of the "patented technology" (quotes intentional) by Desire2Learn. If a royalty rate is agreed to by March 20, then I assume that D2L pays Blackbeard that royalty rate for all existing uses of the D2L VLE as opposed to not being able to use the D2L VLE at all in the U.S.

What does D2L have to say about the injunction?
"Desire2Learn's position has been and remains twofold: (1) that the patent is invalid; and (2) that even should the patent survive appeal and both reexaminations, Desire2Learn can easily and cheaply redesign its product so that it falls well outside the boundaries of the asserted claims of the patent. We have already completed the vast bulk of the work for this redesign. As a result of the Court's Order, we are expediting our efforts to finish our work and to provide to all clients and prospects a version of our Learning Environment that leaves no doubt as to noninfringement. We expect to release the redesigned product in the next few weeks and well before the end of the 60-day grace period that the Court has granted." (emphasis mine)

What does Blackboard have to say?
"Over the coming sixty days, we are committed to collaborating with Desire2Learn to seek a resolution that enables their existing clients continued access to Desire2Learn teaching and learning solutions." Translation: Look judge - we're really trying to be nice here. We truly want D2L to be able to play in the sandbox with us - really, truly, we do, we do, we do!! It's not our fault that D2L won't be able to satisfy our demands now that we hold all the cards.

We are of course gratified that the jury in February recognized the validity and importance of our contribution to e-Learning. For over ten years, we have been fortunate to be a part of a period of unprecedented technology innovation in the educational industry." Translation: can you believe that we were able to get a jury trial for this? Thank God that there wasn't anyone on that jury who has worked in e-learning over that 10 year period. We are so fortunate to be able to take credit for the "technology innovation" created by others - see, now the whole industry is benefiting!

We also know that you may receive questions from colleagues so we will keep you posted as events warrant on any additional elements of this patent process in the coming weeks and months." Translation: we really need all of you to cover our backside so that we don't get a full-blown boycott on our hands.

Thank you again for your interest, for the honest feedback you’ve provided throughout this process, and for your partnership in moving forward. We know we serve an actively engaged and passionate community of educators and learners and truly value the opportunity to do so." Translation: hey - we know that you're pissed off, but come on - we WON!! Your feedback has been so honest that we really can't tell whether you're fer us or agin' us, but either way our stockholders really value your passion for education (choke).

Prediction #1: Since D2L is playing against an unfairly stacked deck - expect them to have a very difficult time getting a positive ruling that their work-around is successful at NOT infringing. Why? Because Blackbeard wants them to continue to infringe. Bb will do everything in their power to make sure that any work-around is not seen as being valid. This is where the idiotic will really become absurd. Bb has said all along that their patent claim is "very narrowly defined." Just wait until D2L has a work-around in place and then you'll see how Bb's definition continues to grow and grow (much like the nose on their corporate face) so as to continue to include D2L's "method" as an infringement to this method patent.

Prediction #2: Blackbeard will not sue another U.S. company, such as Angel or eCollege or Educator. They somehow feel safe in suing a Canadian company and know that they get preferential treatment in a U.S. court against the wayward Canadians. With as much wrath as they have felt from the educational community for this suit, I think you can double it if they sue an American company.

Prediction #3: Blackbeard will continue to lose sales in the U.S. even if the patent is upheld and even if D2L and others are unable to stop infringing on the patent. I have not talked to one Blackboard client/user who approves of what they've done or how they've done it. Most former WebCT clients can't wait for their contracts to expire so they can leave the BlackCT jungle. Bb stockholders will be very upset over the next few years as they see the client base shrinking. Even though it has always been an inferior product, Bb has been able to get their monopoly in the market because of other factors such as marketing and slick salespeople, and of course that WebCT merger that never should have been allowed. Those things won't work in the future because everyone knows that this company doesn't play fair and can't be trusted.

Correction on the Correction: Injunction Signed

Wow, every time I step away from my computer for an hour or so, something important comes in. I just got back from playing racketball with my kid and find an email from Jim Farmer with attached documents showing that Judge Clark did in fact sign a 4-page injunction dated today (3/11) that that prevents D2L from selling it's products in the U.S. He then stayed that injunction for the next 60 days while additional legal wrangling will occur.

I'm off now to another appointment now so probably won't get back to this until late tonight, if then. You should be able to read more about it at all the usual suspects. More later.

Correction: No Ruling on Injunction

Last night I saw the following Twitter posts while searching for news about any action in the East Texas courtroom regarding Desire2Lerarn and Blackboard. Judge Clark apparently did NOT issue an order of any kind. He has put a hold on things for 10 days in order for the two sides to talk - apparently, according to a good source.

Al Essa tweeted what he believed to be true based on a court document that he saw. The document does in fact say that "Court will enter a written Judgment and Permanent Injunction."

To tell you the truth, I'm more confused now than I was 15 minutes ago. Desire2Learn is expected to issue a statement this afternoon. Maybe some clarity, let's hope.

Monday, March 10, 2008

Blackboard Lies and Liars

Blackboard is working hard on becoming the most hated corporation in the education market. Anyone paying attention will easily come to the conclusion that these people do not play fair; are not collegial in any way , shape, or form; and fully deserve to be shunned by the educational industry that they seek to monopolize.

More dirt about Blackboard comes from the information released by D2L in their response to BB's Motion for Permanent Injunction. See pages 10-11 of 18.

"In the past three years, Bb has made two requests to the government of the United States for assistance in helping Bb avoid competing in a free and open market. Bb successfully advocated to the United States Department of Justice that Bb’s absorption of the second-largest CMS provider in the market would not adversely affect competition, in large part because its competitor, D2L, had “continuing momentum” that would prevent Bb from having undue market power after the merger. However, almost immediately upon completing its merger, Bb turned to this Court and now asks the Court to enter a permanent injunction to eliminate the very competition that Bb told the Department of Justice justified the merger.

Worse yet, from before the time of its first submission to the Department of Justice, Bb knew that the PTO had allowed the patent. Bb, nevertheless, continued to ask the Department of Justice to approve the merger because competition was “robust and increasing,” “vigorous and growing,” and because of the “vigorous competition that Bb faces and will continue to face.” Bb never told the Department of Justice that Bb had been issued a patent that it planned to use to hobble or eliminate competition in the CMS market. Bb went so far as to argue to the Department of Justice that “Bb will not be able to raise prices or otherwise impact competition unilaterally because of the increasingly strong competition from these numerous and diverse sources.”

Let's recap: Blackbeard tells the DoJ that the WebCT merger should be allowed because it has ample competition in the market while specifically mentioning D2L, they don't tell the DoJ about the patent that would severely limit competition which they already knew was being granted by the USPTO, and then they immediately sue D2L once the patent is issued in order to reduce competition.

And who are the upstanding Americans that are getting away with gaming the system? Below you'll see them on stage at Educause courtesy of a CC-licensed photo by Al Essa. I added my own editing touches and then published it under the same CC-Attribution, Share-Alike license that Al used.

If the one on the right is Blackbeard, then the one on the left must be Benjamin Hornigold - the pirate known as Blackbeard's tutor. Of course I could be wrong.

Updated mid-afternoon: Blackboard announces today that they are entering the video surveillance business for colleges. HUGE QUESTION: WHO THE HELL IS WATCHING BLACKBOARD??? WHERE IS OUR SURVEILLANCE SYSTEM FOR THEM???

Another update: Monday evening - apparently the Texas judge grants permanent injunction to Blackboard barring all sales by Desire2Learn in the U.S. Looking for more info. WRONG!!! WRONG!!! WRONG!!! - see new post for complete mea culpa

Friday, March 07, 2008

An Answer from John Baker

During my conversation with John Baker yesterday, I talked with him about the following:

I believe that this bogus patent and aggressive lawsuit has been the start of an anti-Blackboard movement within Higher Ed, which is of course exactly what they deserve. However, it should be of some concern to Desire2Learn that this movement may not be restricted only to Blackboard even though they are the current poster child for untrustworthy partners. In other words, is there a danger that the higher ed community will take this as a wake-up call to not only avoid deep ties to Blackboard, but to all vendors since any of them might potentially start acting in ways that are not collegial in nature?

My question to John: If the result of this lawsuit is that higher ed starts to avoid vendor relationships altogether and concentrates more on managing their own services via open source options - won't Blackboard's bad deeds actually hurt the entire vendor community, including D2L?

John's answer was: "This can't be a backlash against all vendors. I think it should be a backlash against vendors that have conflicting values with those of the educational community. Without investment dollars coming in from folks like ourselves and others, it will slow the pace of innovation which will do an injustice to all the students and faculty and institutions around the world. We don't want to let Blackboard win, if people latch onto fear attached to this and think 'oh, we need to do this ourselves now' - it doesn't even get around the issue because Blackboard has left it open to sue people who are implementing Sakai or Moodle or other things as well, so it's not going to get around the issue. I think what education needs to do is swing support to vendors that are more in line with their true values. We've gotten overwhelming support from the clients we've been talking to over the course of the last couple of weeks. Once we get past this issue with Blackboard, I think we're going to be in great shape because we're finally going to get an answer about does our work-around get around the patent or not, and as soon as we have that we're free and clear. We'll effectively be the only people out there in the world who are out from underneath a certain dark cloud. You know me, I always look for the sliver lining in everything. I'm anxious to get to that point, but at the same time we're not going to give up the fight against the patent validity. Even if we're out from under the cloud, we'll continue to fight it."

I may have missed a word or two here or there - but that is basically what he said to me so I feel pretty good about using the quotations on that paragraph. I thought that was a pretty good answer just off the cuff for a question that he didn't know that I was going to ask. I wish I was that smooth.

Thursday, March 06, 2008

Blackboard Overreaches

D2L's response to Blackboard injunction filing starts like this:

"After more than nine hours of deliberation, the jury returned with a verdict that rejected over 80% of Plaintiff Blackboard, Inc.’s (“Bb”) claims of patent infringement against Defendant Desire2Learn Inc. (“D2L”). Bb, however, simply ignores the jury’s verdict ruling against it on most of the case and unabashedly asks the Court to enjoin D2L from selling “all versions and subversions” of D2L’s Learning Environment product for both “hosted and self-hosted schools,” as well as D2L’s “entire services spectrum, including hosting, training, help desk, implementation, customization, and content services.” Bb also asks the Court to impose a 25 % royalty on products and services provided to existing customers, whether D2L-hosted or not, even though the jury plainly rejected such a royalty rate and the undisputed evidence showed that D2L cannot pay such a royalty rate. Bb’s overreaching underscores the real motive behind this suit: Bb, which claims to have over 90 % of the course management system market today, wants to exclude its most effective competitor from the United States market entirely."

Wow, you just can't make this stuff up. A little further down:
"If the Court enters an injunction, it also should reject Bb’s request for an unprecedented and legally unsupportable provision prohibiting D2L from selling any products or services—infringing or not—for at least three months. The Federal Circuit repeatedly has held that any injunction should not apply to future potential design-arounds, unless and until Bb proves that such design-arounds are not “colorably” different from an enjoined device. Bb notably fails to offer any legal support for this extraordinary relief. Bb’s requested provision would prove especially unfair because many educational institutions make their purchasing decisions at this time of the year in order to have a CMS in place when school begins in the Fall."

Yep - Blackboard wants sort of a 90-day moratorium on allowing D2L to stop infringing. In other words - if D2L were able to stop infringing right away, then they might continue to sign new clients who "by rights" should only belong to Blackboard. Totally unprecedented move to say that D2L shouldn't be allowed to sell anything - even things that don't infringe on the patent. How do you spell MONOPOLY? B - L - A - C - K - B - O - A - R - D

Then it says:
"On the other hand, D2L is a small, but growing company. Enjoining D2L would significantly affect D2L. Additionally, enjoining D2L would deprive the public of a competitive choice for course management systems and leave it primarily to the tender mercies of Bb, a company that many universities are turning away from for problems with customer service, unwarranted price increases, security flaws, and antiquated architecture."

No wonder BB needs the courts to protect them. They seem unable to do that themselves from a company that is probably about 1/100th the same size (rough est.).

Really good stuff about poor old Blackboard on page 10 about the WebCT merger. More about this later as well.


I just got off the phone with John Baker (far left on photo) and Diane Lank (not pictured), attorney for Desire2Learn. We talked for about 30 minutes about the trial, the verdict, next steps, etc.

In about an hour (noon central), D2L will post some new information on their Patent Blog that should be very interesting. Suffice it to say that a recent Blackboard filing (for an injunction, I believe) was made "under seal," most likely so they would not face the ire of the education community for the tactics employed in their legal maneuverings (my opinion). The juicy part should come on the D2L Blog when they release the official response which will NOT BE UNDER SEAL and will of course address the points made by Blackboard under seal. That should be great fun for those us watching from the sidelines. (Update - it has now been posted as of 2:32 PM central.) Also see new post above or click here for info about D2L's response.

There may be some interesting info in that posting regarding BB's real intentions with regard to Sakai and other open source products that they believe infringe on their patent.

I only have a few minutes to post something right now, so I'll just make a few points from my conversation with John and Diane.

  • Blackboard was actually seeking over $50 million in damages by seeking treble damages for D2L being willful in their infringement. The jury never saw Blackbeard's actual request and only heard that BB was seeking 17.1 million, which they reduced to 3.1 million.
  • I need to do some research on Blackboard's "American Heritage" award in 2000 from the Simthsonian for their CourseInfo2 product. Apparently this was produced several times as evidence of their invention, even though it has nothing to do with the invention.
  • A work-around is almost finished that should keep D2L from infringing (if you believe that they are infringing) - but Blackboard may be maneuvering to try to stop D2L from NOT infringing - which should be interesting. BB would like to restrict D2L's access to new clients by not allowing them to implement a work-around. The bonus of this work-around is that D2L believes that it will actually improve their product. The downside is the question about who will actually decide whether they are no longer infringing - if BB gets to decide that important piece then you can expect their train of lies to continue (my opinion, again). BB desires 2 keep D2L infringing on their patent - how idiotic (and unjust) is that?
More coming a bit later.