Posted by: rmostell | March 10, 2010

Blackboard and Desire2Learn Settle Their Patent Disputes

The Settlement:

Finally after years of litigation and wasted energy Blackboard Inc. and Desire2Learn Inc. (D2L) have settled their disputes over patent issues on December 15, 2009.

[Whoops! since I started writing this blog yesterday, the above webpage has mysteriously disappeared. Now it requires the infamous, patented “single login” – username and password.  Hmmm? Reminds me of Mission:Impossible.]

“As is standard, the terms of the settlement are confidential.”

“the companies have reached an agreement to license each other’s worldwide e-learning patent portfolios”

Remember WebCT and Angel Learning?

I don’t want to sound pessimistic but does anyone remember WebCT and Angel Learning, two superior web learning environments that were economically devoured by Blackboard Inc. in recent years?  What happened to their “patent portfolios”?  Will we ever again see the brilliant interfaces developed by these companies?  Or will we continue to see the same bland, cumbersome interfaces that Blackboard has been selling us for over 10 years?   Will John Baker, President and CEO of D2L have sufficient resources to resist getting rich overnight by also selling out to Blackboard?  Or will we have Blackboard DC and Blackboard Northwest Territories?  Good luck John!

Open-Source Alternatives?

Fortunately we still have open source alternatives.  Maybe one of these will eventually develop into a true “enterprise” system with all the bells and whistles that universities demand today and that their students deserve.

Where have all the documents gone?

Did anyone notice that all the legal documents posted by D2L have disappeared?  They were public court documents and U.S. Patent and Trademark Office (USPTO) documents. They were posted here:

which has now been replaced by a redirect to the D2L main webpage. How convenient.  Must have been one of the undisclosed conditions of the settlement to bury the dirty laundry.

Where have all the patent claims gone?

What ever happened to the USPTO rejection of all  claims in the Blackboard ‘138 (Alcorn) patent?

or the USPTO re-examination of the ‘138 patent.  Is this still ongoing?  Is there a chance that the USPTO could revive the ‘138 patent? Ouch!!

Where has all the money gone?

What happened to the $3 million settlement that Blackboard “won” in the lower court in East Texas?  Did Blackboard return these ill-gotten gains to D2L?

Where have all the judges gone?

Didn’t the appellate court throw out the lower court’s decision?

Blackboard has all the answers:

Blackboard still lists the ‘138 patent on its “patent pledge” webpage: *

Does this mean that after years of effort by D2L, the U.S. courts and the USPTO, Blackboard may still try to enforce this poorly worded and highly questionable patent against other innovative, commercial vendors who try to enter the race for providing learning management software to educational institutions?  Was all this effort wasted? but D2L was saved?  I thought that the independent claims #1 and #36 of the ‘138 patent were declared invalid and thus all other dependent claims are also invalid.

If D2L had to remove all the valid, legal documents (some submitted by both sides) from its “files” website (mentioned above), why does Blackboard get to keep the invalid ‘138 patent on its website?  This seems to be an obvious effort by Blackboard to intimidate all would-be developers to pay royalties to use their patent that has been declared invalid by the U.S. courts and the U.S. patent office.

* I saved a screen shot of this webpage today just in case it also pulls a Mission:Impossible act.

Blackboard Patent Pledge webpage today, March 10, 2010.

Footnote: Some of the headings in this blog post are an obvious reference to the song Where Have All the Flowers Gone which was performed by Peter, Paul and Mary and recorded by The Kingston Trio in 1961. The song, based on the traditional Ukrainian folk song “Tovchu, tovchu mak”, was written by Pete Seeger as a call for peace. Get it?



  1. Hi Ray, I’m very glad you raised these questions. I took a stab at investigating the status of the USPTO’s re-examination of the patent. I posted my information here:

    • Thank you, Jeff, for providing this updated information about the USPTO re-examination of the Blackboard ‘138 (Alcorn) patent. This is certainly good news that this mess may finally come to an end in April 2010. Obviously the continued attempt by Blackboard to enforce the validity of the ‘138 patent is not good for education – all of us, students and teachers and inventors. I certainly agree with the USPTO that the patent claims are all obvious based on prior art, i.e. Blackboard didn’t invent anything but simply copied what others had done and tried to claim it as their own invention.

      Thank you for your contributions. Please keep me informed about any updates from the USPTO.

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