Jury Sides With Blackboard in Patent Case

Desire2Learn ordered to pay $3.1 million to learning software giant in infringement lawsuit that is hugely unpopular with college technology officials.
February 25, 2008

A federal jury in Texas on Friday awarded the learning services giant Blackboard $3.1 million in its patent infringement lawsuit against a much smaller competitor, adding a new layer of complexity and uncertainty to a complex, uncertain market for higher education learning management systems.

The July 2006 lawsuit, closely watched (and much-derided by many) in the higher education technology world, accused the Canadian company Desire2Learn of infringing dozens of Blackboard patents for online course management and e-learning technologies. Blackboard sought $17 million in damages and an injunction barring Desire2Learn from continuing to infringe the patent. Blackboard came under heavy fire from campus technology officials, including a rare rebuke from Educause, higher education's main technology association, for asserting the company's patent rights to technologies that many argued were simple and longstanding technologies in wide use by corporate and open source learning systems.

After a two-week trial in Lufkin, Tex., and just a few hours of deliberation, a jury in the U.S. District Court for the Eastern District of Texas (which is seen as being friendly to patent holders) agreed with Blackboard that Desire2Learn's learning platform uses technologies for which Blackboard received U.S. patents in January 2006. But its verdict gave the company far less than it was asking for, awarding Blackboard $2.5 million for lost profits and $630,000 in royalties.

In addition, the verdict allows the company to petition the judge in the case, Ron Clark, for an injunction against further patent infringement that would force Desire2Learn either to alter its products or to stop selling them to new customers in the United States.

In a statement via e-mail (but not posted on the company's Web site), Blackboard's president and CEO, Michael Chasen, said officials were "pleased that the jury recognized the importance of our contribution to e-Learning. We look forward to continuing to innovate and invest in new technologies that help education institutions around the globe improve teaching and learning."

The statement also contained a statement in which Blackboard's chief legal officer, Matthew Small, appeared to reiterate to fearful supporters of open source learning systems (such as Moodle and Sakai) that the company did not plan to pursue similar infringement claims against non-commercial competitors. "We also continue to stand behind our Patent Pledge which covers this patent and reflects our ongoing commitment to interoperating with and supporting the evolution of open source and home-grown systems," Small said.

Desire2Learn officials, in a letter to customers, expressed disappointment with the jury verdict, but vowed to continue to oppose Blackboard's patent enforcement efforts, not only to "defend ourselves vigorously" but to "stand up against Blackboard ... in the best interest of the entire educational community," in the words of John Baker, the company's president and CEO. Desire2Learn noted that the jury's verdict was only one step in a multipronged process, that will include not just the likelihood of legal appeals but a continuing review of the legitimacy of Desire2Learn's patents by the U.S. Patent Office.

The blogosphere, which tilts heavily against Blackboard on virtually any and all issues, took a generally dim view of the jury's verdict. Some commentators sought to play down the significance of the jury's verdict, noting that it gave Blackboard less than it had sought and that Blackboard's patent is still under review by the U.S. patent office.

But others expressed fear that Blackboard would soon go after other commercial learning management software providers like Angel, and wondered whether Blackboard would abide by its pledge not to take aim at the open source systems that appear to be gaining ground against Blackboard, especially Moodle. Commentators generally agreed that the implications of the case won't be clear for some time.

"It will take weeks, if not months, to sort out the fallout from the jury ruling yesterday in the Blackboard Inc. v. Desire2learn Inc. case," Alfred H. Essa, associate vice chancellor and deputy chief information officer of the Minnesota State Colleges and Universities system, wrote on his blog The Nose. "Although all is not lost, this is a crushing blow to Desire2Learn, one of the few remaining commercial competitors to Blackboard in the higher education LMS market."


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