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Software patent ignites firestorm in higher education

By , Network World
November 10, 2006 04:06 PM ET

Network World - A firestorm of controversy is spreading in the education community over attempts by key software vendor Blackboard to enforce its patent claims.

It's a case in which the level of vitriol and vilification is making the long-running and now-settled patent battle between Research in Motion and NTP look like high tea at the Ritz. There are claims, counterclaims, a civil suit, an extraordinary demand from a higher-education IT group and a mounting torrent of blog postings.

The spark ignited in late July, when Blackboard, by far the dominant vendor of learning management software, announced it had been awarded a U.S. patent earlier this year for some elements of its software, the Blackboard Learning System.

A short history of the Blackboard patent battle
1997
Blackboard founded.
1999
June: Blackboard files provisional patent.
2006
January: U.S. Patent Office awards Blackboard a patent for "technology used for Internet-based education support systems and methods."
February: Blackboard completes merger with former learning management system rival WebCT.
July: Blackboard announces the patent award. The same day, it files suit in federal district court charging Desire2Learn with infringement.
July-August: Online discussions flare; blogs form to track down "prior art" — ideas and inventions that could be used to show others developed the same technology that Blackboard claims to have invented.
August: The Sakai Foundation, an open source online learning software project, engages the Software Freedom Law Center to counter Blackboard's actions and to address problems in the current patent law system.
Diane Muir, owner of Atlanta-based online school Porta School, files civil suit against Blackboard, alleging the company "willfully and intentionally misrepresented themselves" in applying for the patent. She asks for a $5.3 million judgment against the company. Within weeks, the case is dismissed.
September: Desire2Learn files a counterclaim, alleging essentially the same thing as Muir Blackboard failed to tell the Patent Office of relevant prior art, legally called "inequitable conduct." Blackboard files a motion to dismiss the counterclaims.
October: In an extraordinary action, the board of EDUCAUSE, a leading nonprofit group promoting IT use in higher education, hands a letter to Blackboard CEO Michael Chasen, urging the company to disclaim its rights under the patent, put the patent in the public domain and withdraw the suit against Desire2Learn. Both companies are EDUCAUSE corporate members.
Blackboard says it has made no formal reply but is in conversations with EDUCAUSE.
Click to see: A short history of the Blackboard patent battle

The spark was fanned when rival Desire2Learn (D2L) revealed publicly that on the same day Blackboard issued the press release, it also filed suit in U.S. District Court charging D2L with infringing on that patent.

The latest legal move occurred last week, when a federal District Court judge in Texas ruled that a Desire2Learn counterclaim could stand. D2L alleges "intentional misconduct" by Blackboard officials in failing to notify the Patent Office of prior art" - or ideas and inventions by others that could undermine the patent claims.

The next move is scheduled for early December, when the two sides meet for a pretrial scheduling conference. A tentative trial date of February 2008 has been set.

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