Thursday, July 17, 2008

D2L Confident about Contempt Hearing

The next battle in the D2L-Blackbeard war begins on Monday in Texas. Blackbeard will once again try to leverage their home court advantage against their combatant from north of the border. I've read a great deal of the proceedings from the earlier skirmishes, and I believe that the judge has a definite bias against Desire2Learn and in favor of Blackbeard. Last week I had a conversation with John Baker, CEO of Desire2Learn, in which he told me that the D2L team is extremely confident that they will prevail and be found to not be in contempt regarding their patent work-around version 8.3. I wish I could share in John's optimism, but I've not seen, heard, or read anything that makes me believe they will get a fair hearing in East Texas. Furthermore, there are several people who I've talked to who believe that D2L has been way too optimistic throughout this whole affair. Not that there's anything wrong with optimism (I wouldn’t know, but I've heard that), but that maybe their optimism has kept them from making the superhuman effort that is (was) probably needed from the very beginning. That's not my opinion, that's just what I've heard from others.

Baker told me that the D2L team was very thorough in their analysis of the court record, and every item that was determined to be a patent infringement in their previous versions was modified or re-coded. There are no longer pre-determined roles. Instead the users have the capability of creating any and all roles that they choose, but none are created in advance for them. This is, I believe, the key factor for the infringement. Based on a careful reading of the patent and the court proceedings, this should be the necessary work-around to the (bogus) patent. However, there were several items that I saw in the court documents (see the D2L patent info blog) that lead me to believe that Blackbeard has sufficiently confused the issue to make the judge (and the no longer engaged jury) believe that the patent covers more than what Blackbeard originally said it did. In other words, I definitely have the impression that the judge is understanding the idea behind having multiple roles for a user, but that he is overlooking the part about the predetermined multiple roles, and is of the mind that D2L infringes as long as there is the capability (feature) that allows users to have multiple roles. I certainly hope that I'm wrong about that - but I'll believe it when I see it.

The other thing that John Baker told me was that he thinks the UPSTO will issue a final action on the re-exam fairly soon. Based upon the history of the USPTO in inter partes cases, I once again find myself with a very different opinion. I expect it to drag on for a few more years, especially since I expect the losing side (no matter who it is) to appeal the final action and thus keep this nightmare running for a couple of years past the issuance of the final action.

If D2L gets a favorable ruling in the contempt hearing – they are basically out of the woods regarding the Bb patent, pending any appeal opportunities that the evil empire might have at their disposal. If D2L version 8.3 is determined to be non-infringing, then they will be able to put this debacle behind them, although they have pledged to continue the fight at the USPTO even if they are no longer determined to be infringing. One more thing comes to mind related to the patent re-exam. A representative from eCollege came to visit me last week. They are trying to prepare for a possible future RFP possibility if MnSCU decides to go down that road when the current D2L contract expires or is no longer renewed. At the end of the conversation, I asked him why eCollege would be a safe bet for us and what protects them from the predatory practices of Blackbeard and their patent. His answer was that eCollege believes that they have some prior art that would be relevant and protect them from patent infringement. Excuse me?!? Prior art that is not being brought to bear on the current patent re-exam? I don't actually believe that they have prior art that they are withholding from the process - but it sure seems like an odd statement to make.

As I've written earlier, it will be very interesting to be attending the D2L User Conference in Memphis at the same time that the contempt hearing is occurring in Texas. The hearing should be concluded before the end of the conference, but I'm not sure whether we can expect to hear the outcome of that hearing prior to the end of the conference. Best of luck to D2L and all those who are dependent upon a favorable ruling for Desire2Learn next week. I know, I know, luck will have nothing to do with it. Best wishes then, if you prefer that.

No comments: