Blackboard wins (unfortunately).

Blackboard won its lawsuit against Desire2Learn. This really bums me out! I wonder if Desire2Learn will appeal (please say yes) and if Blackboard will start going after other LMS vendors?

Excerpt from the jury instructions:

Now, the patent in this case is United States Patent Number 6,988,138, also referred to as the ‘138 patent. The plaintiff, Blackboard, Inc., contends that the defendant, Desire2Learn, Inc., directly infringes and contributes to and induces direct infringement by others of claims 36, 37, and 38 of the ‘138 patent by performing the steps of the method covered by the patent in the United States. Blackboard states that it is entitled to damages for the alleged infringement in the form of a reasonable royalty and lost profits. Desire2Learn denies that it is infringing the ‘138 patent.

Desire2Learn also contends that the ‘138 patent is invalid. Invalidity is a defense to infringement; therefore, even though the PTO examiner has allowed the claims of the ‘138 patent, you, the jury, have the responsibility for deciding whether the claims of the ‘138 patent are valid.

The patent claims being enforced by Blackboard and contested by Desire2Learn (copied from the US Patent Office):

36. An method for providing online education method for a community of users in a network based system comprising the steps of: a. establishing that each user is capable of having redefined characteristics indicative of multiple predetermined roles in the system and each role providing a level of access to and control of a plurality of course files; b. establishing a course to be offered online, comprising i. generating a set of course files for use with teaching a course; ii. transferring the course files to a server computer for storage; and iii. allowing access to and control of the course files according to the established roles for the users according to step (a); c. providing a predetermined level of access and control over the network to the course files to users with an established role as a student user enrolled in the course; and d. providing a predetermined level of access and control over the network to the course files to users with an established role other than a student user enrolled in the course.

37. The method of claim 36 wherein at least one of the course files comprises a course assignment, further comprising the steps of: e) the student user creating a student file in response to the course assignment; and f) the student user transferring the student file to the server computer.

38. The method of claim 37 further comprising the steps of: g) the instructor user accessing the student file from the server computer; h) the instructor user reviewing the student file to determine compliance with the course assignment; and i) the instructor user assigning a grade to the student file as a function of the determination of compliance with the course assignment.

I still feel that the patent shouldn’t have been issued. Not only because there were people creating LMS systems prior to Blackboard’s existence, but also because the topics mentioned in steps 36, 37 and 38 are so generic to networking and online courseware that nobody should be granted a patent. It’s silly and has a negative effect on education around the world.

It’s like someone trying to patent how a library checkout system works: “Hey, I patented the concept of checking a book out from a librarian! You need to pay me a royalty for every book that you’ve ever checked out!”

Umm… I don’t think so.

Additional link: Desire2Learn’s blog also provides a link to a video produced by the Federal Judicial Center titled An Introduction to the Patent System. Interesting stuff.

This 17-minute video is designed to be shown to jurors in patent jury trials. It contains important background information intended to help jurors understand what patents are, why they are needed, how inventors get them, the role of the Patent and Trademark Office, and why disputes over patents arise.