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.


Alan said...

Your post is wonderful. As a college that uses another Course Management System from a smaller but growing company, I am worried that Bb will go after them. As you stated, it seems that Bb has no desire to make their product better but to get rid of their competition. Since Bb went public it seems to me that they have to answer to their stockholders and not their customers. The only bright spot out of this whole mess is that Bb might really be killing themselves as other colleges go through evaluations of Course Management Systems. These colleges should stay as far away from Bb as possible.

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