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

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