Tuesday, November 16, 2010

Blackboard 138 Patent in the Ether?

Why wasn't I invited to the party? There must have been a Blackboard patent burning party, and I'm feeling pretty badly about not being invited. Seems strange that I can't find any news about the party on the Internets. Y'all did a pretty good job of keeping this celebration a secret. Or did we just let the '138 patent slip into the ether as if it never happened? 'Tis a shame if we missed an excellent opportunity for fun and frolic.

I'm referring to the Blackboard (Alcorn) '138 patent. You might remember that they had this little flap with Desire2Learn that played out in a Texas courtroom and at the USPTO, and at the Software Freedom Law Center, and on a couple thousands blogs, including this one.

However, it's been really hard to get any substantiated news about the status of the Blackboard (Alcorn) '138 patent since about March, 2010. That's when Jeff Bohrer posted info about Blackboard's last 30 days "to appeal the USPTOs decision to overturn all claims in the '138 Alcorn patent." Apparently, they didn't do that. If they did, where is the evidence of that action?

To further give credence, the Blackboard Patent Pledge page no longer lists the '138 patent, which indicates to me that they can't list it because it is no longer a valid patent. Here's a screenshot from Nov. 16, 2010. (click for larger)

Compare that with this screenshot posted by Ray Mosteller back in March. The '138 was featured front-and-center on their pledge page back then, but it is missing-in-action today.

It seems odd to me that this news was allowed to pass into the ether without being widely shouted from the blogtops. Do I have this wrong? Did I miss all the action? I don't think so.

Back in October I was enjoying a pizza with a few friends when one of them opined that the Blackboard patent was dead and buried. That didn't seem credible to me, since no one else had been saying so. So I've looked and searched and asked around, and the best I can come up with is the conclusion that indeed
  • The wicked witch's patent is dead. Most sincerely dead. Long live Dorothy.
As coroner I examined her sound clip

This next item looks like it might be fairly insignificant, but it still looks like a fun thing to me. The North Texas Patent Group, Inc. has filed a complaint against Blackboard for "False Marking" of the '138 patent. This happened back on Sept. 25, 2010.

It does appear that these false marking suits are a dime a dozen. Here's one list of them, including the NTPG vs. Blackboard claim. It also appears (admittedly, on the surface) that there are several watchdog groups who tend to pursue claims of this type. My first reaction to this is that the NTPG isn't trying to get rich off of this claim against Blackboard (asking $500 in damages per instance), with only half of the proceeds (if any) going to NTPG and half to the United States of America (to help pay down the national debt, or what?).

The problem with false marking is the potential adverse effect on the free marketplace when you state that you have a valid patent when you don't. In the words of the NTPG (pg. 2): "False patent marking is a serious problem. Acts of false marking deter innovation and stifle competition in the marketplace. If an article that is within the public domain is falsely marked, potential competitors may be dissuaded from entering the same market. False marks may also deter scientific research when an inventor sees a mark and decides to forego continued research to avoid possible infringement."

I don't know what evidence NTPG collected against Blackboard and when, but it was pretty easy for me to spot my own evidence of false marking of the '138 patent. I took the screenshot below on Nov. 15, 2010. The footer of this Blackboard webpage clearly lists the '138 patent. The webpages in the "Investor Center" section still contain the old footer, but all the other pages I viewed had a new footer that didn't list any patents by number. (click to enlarge)

On line 25 of the "Facts" section, NTPG states the following:
  • "United States Patent No. 6,988,138 (the “’138 patent”), titled “Internet-based Education Support System and Methods”, was issued by the United States Patent and Trademark Office (“USPTO”) on January 17, 2006 and all independent claims were held invalid as indefinite or anticipated by the United States Court of Appeals for the Federal Circuit on July 27, 2009. (See Ex. A.)
Okay, so what's right and what's wrong? Is it dead or alive? And who was in charge of sending out the party invitations?


Anonymous said...


LearningByReading said...

Blackboard seeking patent??!!!
We have had so many problems with them. I dont know how they stay in business.