Originally written 23/2/2008; last updated 7/3/2008
Yesterday a jury in Lufkin, Texas upheld Blackboard's patent infringement claim against Desire2Learn, and reportedly awarded Blackboard Inc. USD 2.5m for lost profits and USD 0.63m for lost royalties. (I believe Blackboard had been seeking USD 17m in lost revenues.) It will be a while before the full implications of the decision become apparent - other than that the decision represents a big, if not surprising*, setback for Desire2Learn, and for those of us who oppose the patenting of software in general (and the patenting of ideas arising in publicly funded research and development, in particular).
Nor do I know the result of Desire2Learn's parallel inequitable conduct case against Blackboard (this was being considered in Lufkin by Judge Clark on 22 February, sitting without a jury).
Below I am including some relevant links for readers wanting to keep up with developments:
- Friday 7 March post by Michael Feldstein and Jim Farmer concerning 10 March court hearing at which Blackboard seeks (amongst other things) an injunction banning Desire2Learn from selling its system in the US;
- Wednesday 27 February detailed account of the latter part of the trial by Jim Farmer;
- Monday 25 February piece by Catherine Mangan in the Chronicle of Higher Education, with quotes from Blackboard's Matthew Small and Desire2Learn's John Baker;
- Saturday 23 February article by Matt Walcoff in The Record, local paper in Desire2Learn's Canadian home town;
- Desire2Learn's 22 February post-decision message to its clients, and its Patent Information Blog, where Desire2Learn will be posting update information in the coming weeks;
- Blackboard's press releases page, where you would expect a media release from Blackboard to appear soon;
- Google search for the last week's blog postings containing the terms Desire2Learn and Blackboard;
- Google search of the last week's news output containing the terms Desire2Learn and Blackboard;
- Michael Smith's Eastern District of Texas Federal Court Practice blog, where lawyer Michael Smith posts legally informed updates about the business of the court in which the case was heard;
- Google search of the Software Freedom Law Center's references to Blackboard, for any future comment from SFLC pertaining to the case (you may recall that in January 2007, SFLC succeeded in its ex parte request for a re-examination by the US Patent Office of Blackboard's US Patent 6988138).
* Remember that a patent is presumed in US law to be valid when issued from the US Patent and Trademark Office, and that whereas the burden is upon the plaintiff - in this case Blackboard - to prove infringement "by preponderance of the evidence" (a lowish burden of proof), the burden is on the respondent - in this case Desire2Learn - to prove that the patent is invalid "by clear and convincing evidence" (a higher burden of proof).