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Exclusive Interview
Desire2Learn CEO Makes Case Against Blackboard Patent, Court Ruling
A conversation with Desire2Learn's John Baker and Diane Lank
3/17/2008
Nagel: And now are you just completely outside the process at this point?
Lank: No. That's the benefit of an inter partes reexam as opposed to an ex parte reexam. As you may recall, the Software Freedom Law Center did an ex parte reexam, and that's basically you put some prior art at the doorstep of the PTO, and they grant it or don't grant it, and then you're out of the picture.
With the inter partes reexam, you bring forward the prior art, and it's an interactive process. So once the initial Office action takes place, both parties will have an opportunity to respond, and there's back and forth.
Since our petition was granted in February of 2007, we have not yet received an Office action from the USPTO. So right now we don't know what is going on there.
Nagel: And you've received no updates whatsoever.
Lank: We have received no updates whatsoever.
Baker: We really hope an examiner does pick it up at some point.
Lank: Yeah, well, we know it's been assigned to an examiner. We also think that it's in a bit of a peculiar procedural situation because an ex parte and an inter partes reexamination was filed at approximately the same time.
Nagel: They were month apart, right?
Lank: Actually I think they were about two weeks apart. And nobody really knows ... see the whole inter partes procedure is fairly new, and there haven't been a lot of them yet. So I'm sure the Patent and Trademark Office is a bit challenged with how to work this.
But I was reading their annual report--I believe it was for 2006--that stated that the typical length for an inter partes reexam is about 15 months. Now, I think we're not going to make that average, but it did give me some hope that the Patent and Trademark Office will be doing some [work on it].
Nagel: Do you believe something will be coming down in 2008, or do you just have no clear idea?
Lank: We have no idea, but I would be surprised if something didn't come down by the end of the year.
Nagel: Related to that, are you working out some kind of mechanism to recover the royalties you're going to have to pay Blackboard when their patent is overturned?
Baker: I think one of the things we've told our clients very clearly, and I think there was some confusion early on, one of the things we've always said very clearly is that we will never ask our clients to pay for the royalties. That is something that we will bear as a company.
And also, the royalties themselves are not paid directly to Blackboard. I would imagine they're going to go into an escrow account pending appeal. Blackboard shouldn't count on that revenue.
[The conversation at this point turned to corporate financials and legal fees, which we'll spare you.]
Nagel: Have you had any response from Blackboard since the release of 8.3? I know it's only been a day or two.
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