Wednesday, April 30, 2008

Challenge to D2L Developers

I'd like to throw down a little challenge to the D2L development team as well as all the other VLE providers out there. Yes, even you Blackbeard. In this video I demonstrate the use of document editing tools inside D2L and ask the question of why these tools haven't already been developed inside D2L or any other VLE that is out there.

The catch is that these are not your father's editing tools. These are editing tools for students to use while working in the VLE. Why is that such a foreign concept? I'm serious, can anyone explain that to me?

The video is slightly more than 5 minutes long. I sort of lose my train of thought near the end. I decided not to edit that out, mainly because I just didn't feel that it was worth the effort. Here is a link to the video at To view full-screen, click on the little screen icon in the lower right-hand corner of the embedded video.

Monday, April 28, 2008

Mini-Bites about D2L Lawsuit

These are just a few things I've heard about over the past few days. I'm not going to attribute any of these to anyone since I've been asked not to on some of them and on others I just can't remember. These definitely need a grain of salt - rock salt, at that.

1) Blackbeard will declare that the D2L work-around in Version 8.3 is no work-around at all and that the product still infringes. (I heard someone else say this but I've been saying it all along.)

2) Blackbeard will take their sweet time before publicly declaring that they believe the (supposed) work-around is infringing. They want to stretch this out as long as possible. (Once again, I heard this recently, but Ive said much the same since the original ruling was handed down.)

3) Blackbeard's legal counsel Matthew Small has been calling D2L clients to convince them that they need to jump ship (over to Blackbeard) or else be forced to walk the plank. (attribution to D2L Blog on this one) I wish he'd call me.

4) Although optimism can be a good thing (I wouldn't know much about that), some D2L clients believe that the company higher-ups have been way too optimistic all along about a positive outcome to all of this and have failed to properly take mitigating steps on behalf of their clients and have therefore put their clients at risk of having their D2L installation shut down by the judge. That seems too extreme to actually happen, but more and more people are beginning to think it could happen.

5) Some D2L clients are shifting into high gear for crisis planning by trying to line up alternative VLE platforms in case D2L gets shut down in some form on May 11 or soon thereafter. Again, this sounds way too bizarre to actually happen, but stranger things have probably happened in U.S. court proceedings.

Just thinking out loud here. Do you think that there is any chance that the USPTO might act more quickly on the re-exam if they know that there are huge educational implications of letting this re-exam hang in the air for too long? Would they care that hundreds of thousands of students could have their learning disrupted by their inaction? It seems to me that they should care. What about Judge Clark, does he care? Would an extended stay be a grave miscarriage of justice - or should an inflexible legal decision be allowed to wreak havoc among people trying to earn an education? If a tree falls in the forest and there is no patent pending, does .... uhhh, never mind.

Friday, April 25, 2008

Thank You Blackboard

So far I have found one redeeming feature out of the Blackboard patent debacle. Based on their bogus patent, and their undeserved victory in the East Texas courtroom, and the subsequent efforts by Desire2Learn to develop a work-around to the bogus patent - there is one potentially happy development for my college and the entire state system.

Right now we are planning to upgrade the MnSCU installation of D2L to version 8.3 (MR1) in early June. If we stay on track and the upgrade happens, this will be the first time that we have been able to use a new version of D2L without waiting a year or more to do so. We have perennially been about the last client to take an upgrade so we have always been behind (way behind) the curve of getting new tools, new functionality, and that new car smell.

The things that I have seen so far in version 8.3 appear to be a major step up from the much older version that we are currently using. The lawsuit has forced us to do something that as a system we have been unable or unwilling to do by ourselves. We are actually going to take a new release while it is still new. Funny, but I guess we can thank Blackboard for getting us the newest version of D2L in a more timely manner than would have otherwise happened.

Thursday, April 17, 2008

Inter Partes Re-exam Clarification

My podcast with attorney Michael C. Smith included a discussion about the effects of the patent re-exam on the rulings and other actions by Judge Clark in the Eastern District (TX) court room. Michael Feldstein asked a very good question regarding Clark's comments which seemed to assume that the re-exam was of the ex parte variety: "the current challenge is inter partes (modified inter partes due to the merger, actually), which operates under very different rules, has very different odds of success, and plays a very different strategic role in patent cases. I'd be curious to hear whether the knowledge that this is an inter partes challenge changes any of Michael's answers, particularly around the odds of ultimate success."

Mr. Clark responded as follows: "At this stage, the newer inter partes reexam is still so new that we don’t have any idea whether it will be faster or otherwise any different (including whether it’ll have a higher rate of success). However it does affect the likelihood of stay – in an order issued last year Judge Clark granted a stay in a case pending reexam and noted that one of the reasons was that it was inter partes – thus binding the defendant to the PTO’s decision on the cited art. Other ED judges have done the same, either because the reexam was inter partes or by granting a stay only if the defendants would agree to stipulations which treated it as such (more or less). The distinction does have some significance – we’re just not yet sure how much."

In other developments, D2L posted their latest legal document at the Patent Blog site. They are asking for a stay of the court proceedings while the re-exam is being completed. Of particular note in their document is the following (page 2):

"The PTO’s office action represents a virtual death knell for Bb’s patent and its claims of infringement against D2L. The PTO has rejected all claims in seven of the eight inter partes reexaminations that have issued, according to the most recent PTO statistics. Bb itself has recognized that reexaminations may well at least require amendment of the claims.1 If Bb does substantively amend its claims, D2L will acquire absolute intervening rights for those claims under 35 U.S.C. §§ 252 and 316(b). These intervening rights would remove any liability D2L had for infringing actions that take place prior to the issuance of the reexamination certificate. As a result, the Court should not require D2L to suffer the irreparable harm of paying a final judgment and complying with a permanent injunction."

IANAL-BIKSWI (free beer for the first person who figures that one out) and I would say that this attempt at a stay has a much better chance of success with Judge Clark than did their previous attempt at a Motion for Judgment as a Matter of Law and exhibits. I don't think the judge has ruled on that one yet, but I expect that they will not get very far in essentially asking Judge Clark to agree that errors were made in his court room, including some by him.

Tuesday, April 08, 2008

e-Learning Student of the Year

A very amazing student from St. Petersburg College was awarded as the Outstanding Distance Learning Student at the ITC conference in February 2008. Her story and her acceptance speech is all anyone really needs to know about the value of distance learning. Pamela has agreed to let us share this video of her experiences - I think you'll find it inspiring.

Best wishes to Pamela and her family.

Monday, April 07, 2008

Sakai Seems to Think It's Over

In the immortal words of Bluto: "Over? Did you say 'over'? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!" (Germans? Forget it, he's rolling.) "And it ain't over now." For some reason those words come to mind while reading a recent email that I received.

The Sakai Project made an announcement last week that makes it sound like they think the Blackboard patent flap is over. Here are a few quotes from that:

"This rejection of the patent is good news for the education community and supports what we have believed all along--that the patent in question should never have been issued in the first place."

"Because the SFLC request was accepted essentially without modification, their work on the re-examination is essentially complete and this concludes the current relationship between the SFLC and Moodle/ATutor/Sakai."

"We believe the USPTO non-final ruling provides a basis to put this patent matter behind us and resume productive work without distraction. We urge all involved to make that so."

Maybe Sakai thinks they are finished with this thing, but I'm pretty sure that D2L, SFLC, Blackboard, and all the other players are expecting it to continue on for quite some time. It could very well be that their input from this point forward will be minimal or less. However, their press announcement makes it sound like the whole thing is over. Clearly, that is not the case.

Nothing to See Here - Just Move Along

I'll write a longer post when time allows, but it appears that the other half of the story (see first post here) is nothing more than wishful thinking on the part of D2L. I can't find any credible evidence or an unbiased legal opinion that indicates that there is any chance that D2L's efforts to to have the jury finding set aside will succeed.

Suffice it to say that this particular attempt at legal maneuvering will most likely fail. Apparently that means that D2L's hopes are still resting on two different fronts: 1) that the patent work-around in version 8.3 is determined to be non-infringing, and/or 2) that the USPTO issues a final action that rejects the Blackboard patent. More later.

Friday, April 04, 2008

Half a Story

A little bird whispered in my ear the other day, but she flew away a little too quickly. So far I only have half a story that could be huge - if the other half pans out. Really can't say too much right now but it is part of the ongoing D2L-Blackboard saga.

Here are some of the keywords for the story:

  • post-trial motion
  • ignored Markman
  • Judge Clark
  • rejected definition
  • vacate finding?
This is fun. Sure hope it turns out to be true. If false? No great loss, after all it is only half a story, filled with rumor and innuendo. Stay tuned.
CC photo by geishaboy500

Wednesday, April 02, 2008

Desire2Pod Cast 18 - East Texas Law School Lecture

During my lunch hour today (I'm on a diet - no soup for you!) I recorded a phone interview with Michael C. Smith who is a patent lawyer who regularly works in the U.S. District Court for the Eastern District of Texas - also known as the Rocket Docket for patent cases in the U.S. This is the court where the Desire2Learn - Blackboard case was tried. This conversation was very enjoyable and informative, at least for me.

I titled this post as the East Texas Law School Lecture because I learned so much from it - but it is not a lecture at all, just two guys talking about patent law.

powered by ODEO

I had been reading Michael's blog (EDTexweblog) for updates about the D2L-Blackboard case and decided to contact him about doing an interview (his About page). He readily agreed and a day later we have this recording in the can. This is longer than most of my podcast entries, weighing in at 30 minutes. Here is an abbreviated table of contents:

2:25 - Michael explains that he is a neutral party with regard to the D2L - Blackboard case.

3:30 - I ask whether a Canadian company can enjoy a level playing field when being sued by a U.S. company in a U.S. court.

6:05 - Why are complicated, technical cases like this tried in front of a jury of laypeople in the first place? (Hint: it's a constitutional thing)

9:10 - How did the Eastern District of Texas come to be known as the Rocket Docket for patent cases?

12:00 - Michael's take on whether software should be patentable in the first place.

12:50 - Good clarification about the non-final action issued by the USPTO about the re-examination requests. (@ 14:20 - Does that signal the USPTO's intent to reject the patent? - NO!!!)

17:10 - If the patent is rejected - would damages from the court case still stand? What about the injunction and royalties?

19:15 - As the re-exam drags on, might Judge Clark pay some attention to the 45-page non-final action from the USPTO?

21:45 - How common is it for both processes (infringement case and USPTO re-exam) to run in parallel tracks at the same time?

23:30 - Do plaintiffs who win these cases typically want the infringing party to continue to infringe - thus exerting market control over them with the patent - or am I just making all that up?

25:50 - What is the process to determine whether the work-around continues to infringe?

27:30 - Michael talks about the difficulty plaintiffs (BB in this case) often have in proving infringement on the work-around since the defendant now has useful information gained from the trial.

I apologize for the rather loud paper shuffling that occurs a few times throughout the recording - I'll have to be more careful in the future.