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USPTO Rejects Blackboard Patent Claims
3/28/2008
Background on the PatentBetween June 1999 and March 2000, Blackboard filed applications for learning management system technologies with the United States Patent and Trademark Office (USPTO) and was finally awarded patent No. 6,988,138 in January 2006, with several items from previous application removed. The company announced its patent publicly July 26, 2006 and filed a patent-infringement suit against rival Desire2Learn the same day.
In December 2006, Desire2Learn filed a request with the USPTO to reexamine the validity of Blackboard's patent. It was granted that request in February 2007. A similar request was filed ex parte by an organization representing open-source LMS developers, the Software Freedom Law Center. That group's reexam request was also accepted in March 2007. The reexaminations were merged into a single reexamination two weeks ago.
Blackboard had pledged non-assertion of its patent against open-source developers but would not relinquish its patent and said it would target commercial developers.
Blackboard v. Desire2Learn
Desire2Learn was the first such target. In February, a jury in the U.S. District Court for the Eastern District of Texas awarded Blackboard $3.1 million from Desire2Learn for patent infringement (considerably less than what was sought) and refused to invalidate Blackboard's patent. Also this month, the court enjoined Desire2Learn from selling its Desire2Learn Learning Environment 8.2.2 or earlier in the United States, giving the company 60 days to comply. Soon after, Desire2Learn released Learning Environment 8.3 as a "workaround candidate," then, this week, released it as a final workaround.
Should the USPTO's rejection of the Alcorn patent stand, this will, of course, have a major impact on Blackboard's case against Desire2Learn. But it's too early to tell. From its statement today, Blackboard clearly is not ready to back down just yet.
Blackboard has two months to respond to the non-final action of the USPTO, after which third parties will have another month to file further responses. There are three potential outcomes of any further action by the USPTO: It could let the rejection of Blackboard's patent stand; it could modify some elements of the decision; or it could reverse itself.
Blackboard's shares on the Nasdaq exchange closed down 1.06 percent at $32.76 on light volume today but were up 1.01 percent at $33.09 in after hours trading.
See links at the end of this article for further reading on the history of the patent, reexam, and patent infringement case.
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