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Update: Blackboard Defends Patent, Files More Claims
6/3/2008
As we reported last week, Blackboard has responded to the United States Patent and Trademark Office, urging it to rescind its rejection of the company's electronic learning patent. Blackboard has also appended new claims to the patent. Rival Desire2Learn accused Blackboard of reversing its position on the reexamination.
The USPTO in March rejected all of the claims in Blackboard's patent following a reexamination prompted by requests from open source advocate the Software Freedom Law Center and commercial rival Desire2Learn. But the patent rejection was not final, allowing Blackboard a window of time to respond to the decision.
The original awarding of Blackboard's patent No. 6,988,138 (also known as the "Alcorn" patent) was followed soon after by a patent-infringement suit brought by Blackboard against Desire2Learn, the developer of a competing learning management system. This was followed by outrage on the part of the education community and the developer community, which characterized the patent as unfounded, broad, overreaching, and stifling. Blackboard, however, maintained that the patent was narrow, focusing the concept of "multiple roles" for users in specific circumstances. (You can read an account of this here.)
The Patent Office initially agreed, but, on reexamination, determined that the claims were dubious and announced that it had found "a substantial new question of patentability" from the objections raised on both the inter partes reexamination request filed by Desire2Learn and the ex parte reexam request filed by the SFLC. Both reexam requests were filed in late 2006 and accepted in early 2007.
The result was that all 44 of Blackboard's Alcorn patent claims were rejected. But again, this action was not final.
Meanwhile, Blackboard did persevere in its infringement suit against Desire2Learn. Furthermore, even after the Patent Office rejected Blackboard's claims, the court did not overturn the ruling. So the issue has not gone away.
Blackboard maintains that its patent is still valid, even while admitting that the question of what is patentable is still open to healthy debate. Blackboard has also pledged not to assert its patent against open source developers. (See comments on this pledge here.)
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