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Blackboard, SFLC Respond to Patent Reexam
1/26/2007
SLFC's Fontana, however, takes a more measured approach. He said that while some patent holders in the software industry do behave responsibly with their patents, "we are deeply skeptical and concerned about software patents. Software patents present a unique kind of danger to the developers and distributors who make and share that software.
"I think it's fair to say that we believe at the very least that the policy of the courts in the United States and the U.S. Patent Office, which has resulted in an explosion of very broad and potentially very dangerous software patents, is very alive and is having very demonstrably bad effects on the software industry."
Said Blackboard's Small: "At the end of the day, innovation has not been hindered. Collaboration has continued. And our patent has not had a chilling effect. And we will continue [working with] Sakai and the open-source community to make sure that's the case.
He added that while there is a "healthy debate" to be had on the issue of software patents in general, they are valuable in that they protect small companies that invest in development from being "gobbled up" by larger companies. "What's to keep large, multi-billion-dollar, multi-national companies--whose mission really isn't founded in education--from sweeping in (which we believe would be bad for everyone in education)? [A patent] is a way for a smaller company such as ours to make investments in technology and then publish and share those investments without having to fear getting gobbled up by a larger competitor who just picks up where you left off. The idea behind the patent system is sound in that respect."
The process moving forward
Regardless, the USPTO has agreed to reexamine Blackboard's patent. In addition to the SFLC's request for the reexamination, Desire2Learn, which is the defendant in Blackboard's patent-infringement suit, filed a separate request. This request has been assigned to the same patent examiner at the USPTO, and both Blackboard and SFLC agree that the two reexaminations will be merged. Owing to the different natures of the separate filings, this could lengthen the reexamination request, which, according to Fontana, takes on average 15 to 20 months to complete. He did not get specific about how long this particular reexamination would take except to say that it would be at the very least a year before the issue is resolved.
In the meantime, Blackboard's suit against Desire2Learn proceeds. And unless Desire2Learn files a successful stay until the outcome of the patent reexamination is resolved, a Markman hearing will be held some time in July. A Markman hearing in a patent case is used to determine what, specifically, is meant in a patent's claims--down to the language and individual words used in the claims. And if the court does rule on the meaning of the patent, that could have an impact on the USPTO's reexamination.
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