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~)

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