D2L and Blackboard - Expect the Long Haul

Today I made a brief post at OLDaily (brief, because that's the way OLDaily rolls) about a relatively new research report about Inter Partes Reexaminations by the USPTO. This will be a bit longer post about more of the info contained in the report from the Institute for Progress. Patent attorney Michael C. Smith sent me a link to this information, but it took me a month to pay attention due to all kinds of lousy reasons.

Here are a few quotes from the report:
  • "Despite a mandate for "special dispatch", the time required to complete an inter partes re-examination is much longer than commonly believed."
  • "Reexamination, particularly inter partes reexamination is not simply used as an alternative to litigation, but an integral part of litigation strategy – more than half (52%) of patents in inter partes reexams are known to be in litigation during their reexamination"
  • "Without appeal, the average pendency period for inter partes re-exam is 43.5 months, much longer than the 28.5 months reported by the USPTO"
  • "Although no inter partes re-exam has ever been completed after being appealed, the average pendency for appealed inter partes reexams is 78.4 months."
They mention the problems associated with the concurrent litigation in the courts and the reexamination process at the USPTO. Some judges withhold rulings until the USPTO is finished (not Judge Clark in the D2L-BB case), while others proceed without concern for the reexamination (that would be Clark). Of course this puts the judges in a tough spot, "How reliable are initial office actions as a predictor of final results in a reexamination? How long will the process take? How often are the patent examiner’s finding upheld on appeal?" The authors attempt to answer the question about how long (and the answer is REALLY LONG), but the others are left unanswered at this time.

All told, this really looks ugly. Unless this case turns out to be different from the norm, we can expect the reexamination to last for quite some time longer (as in years). Judge Clark will continue to rule on the court case regardless of what is happening (not much apparently, think of paint drying) at the USPTO related to the reexam, and Clark is clearly in Blackboard's camp which puts him in very select company, at least among those who know anything about the IMS/VLE development in the early days.

Via the Intellectual Asset Management blog where there is also a follow-up post.

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