Wednesday, December 16, 2009

My Top 5 Questions about "The Settlement"

News broke on Tuesday afternoon (12/15) that Desire2Learn and Blackbored (Blackborg, Blackbeard, BlackAngel, Dr. Evil, etc. - a.k.a. Blackboard) have reached an agreement to end their 3+ year patent dispute. Very little info has been released about the deal that was reached, and it appears as if there won't be a great deal of additional info coming any time soon.

The whole "we're ready to move on" thing doesn't strike me quite right. These are the top 5 questions (or so) that I have (for today, anyway).

  • Doesn't this move by D2L signal the possibility that there is some validity in Blackboard's lousy "Alcorn" patent? By walking away from this fight aren't we currently left with a patent that is no longer being vigorously challenged? I assume that the USPTO re-examination will proceed with or without this settlement, but they move as slow as molasses and you never know what their final ruling might be. At the current time, doesn't Blackborg still have this Alcorn patent that they can wield against other small competitors? But, the main question in this first group of related questions is "Doesn't cross licensing the patent portfolios indicate that there is something there to license?" Granted, Bb has more patents (rats) than just the Alcorn patent, but still we don't know what they are licensing and what that means for the future of product development for either vendor. It strikes me as a little too cozy, "Gee, we really like your stuff, can we use it?"
  • What happened to the whole "we're in it to win it" attitude on behalf of D2L? Sure, I know that business decisions have to be made that sometimes represent a change in course, but this one strikes me as especially hollow. John Baker has personally told me on more than one occasion that D2L was carrying the fight forward for all of the other companies out there, not just for themselves. This settlement without reaching a resolution about the patent validity still leaves a whole lot of unanswered questions about the LMS market and patents that can have a very negative effect on the educational community.
  • Why would D2L be taking down their patent blog (sometime today, or so it says)? This is a good record of all the filings and maneuvers (albeit from a D2L slant - still, much of it is factual) and this is widely viewed as a rather historic fight in realm of LMS geeks. Why is it necessary for this public record to go away? One of the main reasons for having a blog in the first place is to have an archive of events. postings, etc. There's a lot of useful information in that blog site, why turn out the lights? (Update: during the time that I was writing this post, most of the material was removed from the site. Another update: now everything but the final post is gone.)
  • As a client who is concerned about financial stability of the vendor and future price increases (and all that other stuff), is D2L getting their 3.1 million dollar judgment back from Blackbeard? This will clearly be one of those details that both sides choose not to talk about but I think it is an important piece of the puzzle. I understand that lawyers and litigation are expensive so they may have wanted to end the money drain right now, but if D2L is forfeiting the 3.1 million by abandoning the fight, then again it raises questions for me as to why.
  • Has this whole ordeal made D2L more like Blackboard? Has the ongoing litigation turned them into a corporate culture similar to the evil empire? For example, D2L has been very vocal and public about this whole mess while Blackboard has been mostly silent. Now at the end, both are silent - which looks like D2L is more like Bb than they used to be. If they are going to cross-license software (or whatever), aren't we looking at less differentiation between products rather than more? Just by lying down with the enemy, don't you give the enemy more credence and begin to look more like them rather than less like them? If D2L begins behaving more like Blackboard, then Blackboard has won and all of us in education have lost.
  • There is wide speculation that this settlement is the first step toward an acquisition of D2L by Bb. I highly doubt that, but at this point I find predicting what these two companies will do to be an exercise in futility.
  • The Alcorn patent is also known as the '138 patent and in most of the actions was reduced to claims 36-38.
  • Regardless of my question about whether D2L is becoming more like Bb, I have many friends who work at D2L and I wish them all the best. I'm just a bit worried about what their futures may hold, both as a company and as individuals.
  • I felt more confident about D2L's future before this settlement than after. Call me crazy.
I smell a rat!


Jon K. said...

Maybe removal of the blog was part of the settlement? Blackboard cover their history? Never....

Barry Dahl said...

Jon, that's exactly how it strikes me as well, but of course I'm a known skeptic. Still begs the questions as to whether D2L is becoming more like Bb bu going along with this.

Kylemackie said...

I see your rat, and raise you a fink! Seriously, thanks for this. This does reek a bit.

Matt said...

Hmmm... Bb broke a vow to fight this to the Supreme Court. They also vowed to never sue open-source LMS companies. Just sayin'....

Jeff Bohrer said...

...and this settlement comes at a time when the saga seemed to be turning dramatically in D2L's favor. Very odd.

(a Christmas truce of sorts?)

Barry Dahl said...

You know Jeff, I was thinking exactly the same thing but somehow didn't get that into my post. They absolutely appeared to have the upper hand in the latest decisions and the like. But then the international case, and all the other side cases popping up, so maybe it was finally just too much to continue flushing money down the drain for legal crap. Still, a strange time to play nice.

Anonymous said...

Google cache still has copies of the D2L patent blog.

Search for "patent blog" (minus the quotes).