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Desire2Learn Fights eLearning Patent 65

Nordelius writes "Desire2Learn has responded to the patent infringement claim (PDF) cited by Blackboard Inc. regarding eLearning systems. They have argued that Blackboard was negligent in not submitting details of prior art with their patent application, and further alleged that the material described by the patent was documented in 1998 (PDF) by a collaborative international organization, IMSprogram.org, which was actually working with Blackboard at the time."
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Desire2Learn Fights eLearning Patent

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  • Defendant Desire2Learn Inc. ("Desire2Learn") hereby responds to the Complaint filed by Plaintiffs Blackboard Inc. ("Blackboard") as follows. Unless specifically admitted, all allegations in the complaint are denied:

    I stopped reading after the first paragraph.
    • Re: (Score:2, Funny)

      by JustNilt ( 984644 )

      Then perhaps you should have kept reading. The only thing they "admit" is they are, indeed, an Ontario Corporation.

      2. Upon information and belief, defendant Desire2Learn ("D2L") is and has been a corporation organized under the laws of Canada, having its principal place of business at 72 Victoria Street South, Suite 401, Kitchener-Waterloo, Ontario, Canada N2G 4Y9.
      ANSWER: Desire2Learn states that it is a corporation organized under the laws of the Province of Ontario with its principal place of business

  • Patent the wheel (Score:1, Interesting)

    Fact just because you were the first to patent the wheel does not mean you invented it. STOP trying to sue everyone for using it.
    • by UbuntuDupe ( 970646 ) on Friday September 15, 2006 @10:15AM (#16113192) Journal
      Hey asshole -- I didn't patent a "wheel". I patented a "rotary device for facilitation of translational motion". That's totally different.
      • Hey, a wheel looks like a zero - as in 'ones and zeroes' - and as we all well know, SCO owns the rights on many combinations of those, so bend over - here come the lawyers.
    • hmmm. I think that you must prove that you invented something in order to patent it...
      • Re: (Score:2, Funny)

        by Anonymous Coward
        You must be new here...
      • by symie5 ( 1001116 )
        hmmm. I think that you must prove that you invented something in order to patent it...
        I don't think so...you merely have to prove the product is novel (not identical to another invention), non-obvious (must meet a certain level of difference from a similar previous inventions), and have some useful purpose....then again, I suppose any useful invention created by someone else likely has a patent already, and the requirements for a patent nearly demand you be the inventor.
      • Re: (Score:2, Interesting)

        by epee1221 ( 873140 )
        With the flood of patent applications coming in from everyone, patentability checking is a thing of the past. Here [unimaas.nl] is a brief description of some such patents. There are patents on obvious ideas, non-trivial ideas, previously-implemented ideas, etc.

        You don't have to prove much of anything to get a patent.
      • Um no you don't have to prove anything a nice case in point is this guy trying to patent a moist towel dispenser just by adding a ridge to it..... http://www.inventorhome.com/inventions/Weekly/Week lySm.asp?PatNo=6889867&MaxPg=9&ClasNo=221/33/ [inventorhome.com]
        • by symie5 ( 1001116 )
          This is an improvement patent, not an original product patent. The moist towel dispenser guy merely had to prove that his "improvement" was actually a useful addition to the originally patented invention.
    • _The_ thing that I have against patents is that they grant a monopoly not to people who invent something, but to people who patent it. If someone else _independently_ discovers the same thing, the patent prevents them from using it (at least, without paying royalties to the patent holder).
      • by symie5 ( 1001116 )
        It is a sad thought, but the patent application process should make it difficult for so-called "patent hunters" (people who search for unpatented products in order that they might try to patent in order to receieve exclusive rights to make, use, sell, offer to sell, or import an invention). The process requires the "inventor" to provide a description of the product in enough detail to allow another individual skilled in the art to create the patented object...this is difficult to do for someone who isn't e
        • Re: (Score:3, Insightful)

          by RAMMS+EIN ( 578166 )
          ``It is a sad thought, but the patent application process should make it difficult for so-called "patent hunters" (people who search for unpatented products in order that they might try to patent in order to receieve exclusive rights to make, use, sell, offer to sell, or import an invention).''

          Actually, that sort of behavior would indicate that the system is working. After all, people are inventing things to strike up the bounty that a patent offers them. That's exactly what the patent system aims to do.

          ``T
          • Sometimes I can't figure out what people are trying to say on here.

            ``Additionally patents on a product last either 20 years (for utility and plant patents), or 14 years (for design patents). Very rarely does an invention stay valid for this long, with no necessary improvements.'' But the flip side to that is that many inventions have become effectively useless by the time the patent expires.

            Surely you are not arguing that a patent that covers the entire lifespan of the product are good. The point of a

            • by symie5 ( 1001116 )
              I was arguing the limited time span is a good thing. ;)
            • by symie5 ( 1001116 )
              Actually, I just realized that your original blockquote from me was a combination of my original comment and someone's reply to my comment. To clarify, it should read: Me: Arguing that the limited patent duration is a good thing...

              "dditionally patents on a product last either 20 years (for utility and plant patents), or 14 years (for design patents). Very rarely does an invention stay valid for this long, with no necessary improvements."

              A reply to my comment, reenforcing my idea, though confusing my t

          • by symie5 ( 1001116 )

            Actually, that sort of behavior would indicate that the system is working. After all, people are inventing things to strike up the bounty that a patent offers them. That's exactly what the patent system aims to do.

            Whoops...When I said "It is a sad thought..." I meant for it to mean it is sad to think an original inventor might not receive the first patent on their product, and that someone else might gain the rights to the invention. In your comment, you're stating (better than I) exactly what I was tryi

  • by TrappedByMyself ( 861094 ) on Friday September 15, 2006 @10:25AM (#16113268)
    When will they learn?




    ...crickets...
  • Here's the abstract of the patent [uspto.gov] in question:

    A system and methods for implementing education online by providing institutions with the means for allowing the creation of courses to be taken by students online, the courses including assignments, announcements, course materials, chat and whiteboard facilities, and the like, all of which are available to the students over a network such as the Internet. Various levels of functionality are provided through a three-tiered licensing program that suits the nee

    • I just wrapped up a degree and I took a handful of classes online (mostly ones I didn't actually care about learning in as I have found most online classes to be almost humorous in their education value). And I have to say, BlackBoard is a decent web application. That's it. There is absolutely nothing in it that I have not seen in some other piece of software. There is no unique combination of functionality. It is just a series of forums, file managers, and a grading page. It is configured in a solid way, a
      • Re: (Score:2, Informative)

        by Megajim ( 885529 )
        Try using BlackBoard as an instructor. The layout is cluttered and terrible, and some key functionality is buried. Tech-saavy instructors don't have a problem with probing and clicking until they find the right control, but this is used by all sorts of people, many of whom may already have difficulties with seemingly basic online navigation. My issue with the BlackBoard patent is that this is a bloated system which could use improvement (and the ideas are definitely being improved upon, just look at Mood [moodle.com]
        • Re: (Score:3, Interesting)

          by RingDev ( 879105 )
          If you think BlackBoard is bad, you should see CLEGA! CLEGA makes Black Board look like a golden app.

          My apologies If I have offended any online instructors as well. Although, there are a good number of online instructors who aught to to be offended. I went to a private college (thank you GI Bill!!!), my freshman courses had maybe 30-40 students, we graduated the Assoc degree with 7. Two cohorts combined for the bach degree and we graduated 8. Another cohort jumped in and we graduated the 2nd bach degree wit
      • From the point of view of a university lecturer: agreed.

        Incidentally, precisely because of this suit I've foresworn the use of Blackboard for a course I'm going to be teaching over the summer. Instead I'll be using good old fashioned WWW pages in conjunction with a password-protected Google Group. That combo provides the same functionality, and without any of the slowness and unreliability. Oh, and they don't cost six-figure sums per annum.

    • by joe 155 ( 937621 )
      aren't patents supposed to be for things that are "non-obvious"?

      you must be new here... Still, jokes asside, it is stupid; obvious, overly broad and has existed pretty much since the internet began. Basically this is passing knowledge around (as it has for thousands of years), but crucially on the internet!

      When will people learn that saying "doing X, on the internet" doesn't make it new or non-obvious?
    • Well, WebCT was doing all of this in '95 or '96 IIRC, so there's the prior art. Of course, WebCT just got purchased by blackboard ....
    • Re: (Score:3, Insightful)

      by lobut ( 1003011 )
      I was an intern at Desire2Learn and I know the whole dev, qa team and I still talk a few on msn. So I'm particularly outraged at this patent. It makes no sense and the claims that they make that they're just looking for getting some payment for what they've pioneered is just a flat-out lie. Btw Blackboard software is s*** in comparison anyways.
    • Hey! Atleast they decided to implement whiteboards instead of stealing those other guys' blackboard idea.
    • Note that the only part of a patent with legal standing is the claims section http://inventors.about.com/library/weekly/aapatent claimsa.htm [about.com] . The rest of the patent is just blah-blah to help interpret the claims. The claims are generally constructed as a first, most-generic, claim, then specializations of that. If you can demonstrate prior art for the first claim, then the patent pretty much falls apart.

      The first claim is:

      "1. A course-based system for providing to an educational community of users acces
  • Sooner or later (preferably sooner) we need a public, open forum for idea submission, to serve as a massive clearinghouse full of what will one day be "prior art" in the public domain. Today, the most basic abstract entities and processes (e.g. OneClick) can fall out of the public idea space & into someone's patent portfolio. If ideas start being publicly described, catgegorized, related & strung together into systems in the simplest form feasible and as early as possible, there's at least some chan
    • by sglines ( 543315 )
      When I was an adjunct professor of CS we had blackboard at the college but the sysadmins didn't have it set up properly so I used yahoo groups for my classes and it worked just fine.

      I don't see them going after Yahoo. If Yahoo can serve as a "learning" environment both inside and outside academia I'm not sure that blackboard has ANY valid claims.
    • This already exists, in a way. It's called Defensive Publishing [berkeley.edu]. There's a public database where documents can be submitted at priorartdatabase.net [priorartdatabase.net]. However, it still costs money to post a document. One could essentially replace this with a wiki and make it free.

      "Nearly any document that describes an innovation can qualify as publishable evidence of prior art. Brochures, conference papers and company invention disclosure forms are all fair game. The important thing in establishing prior art is to make su

    • please email me. I'd like to help out with your idea.
  • When a company patents a solution provided piece of software, I view this as a realization that their software ( and profits ) are sinking and will never have the versatility or affordability of other, more useable solutions. So they play the "Patent Card" to lock their crap in.

    It seems software patents only protects the first person to file a patent instead of the person, or community, who invented it and willingly shared it.
  • by Baavgai ( 598847 ) on Friday September 15, 2006 @10:44AM (#16113426) Homepage
    Other than having the patent revoked, what is the real penalty to filing a blatantly invalid one?

    It would seem that there is no incentive not to file for every idea imaginable, if the repercussions are non existent or minimal.

    • I'm afraid that Blackboard's motivation may be to grind down D2L financially until D2L can be bought cheap or simply driven from the market. If the tactic works, we'll see more of it. This one is a test case and it's probably a lot cheaper and less risky to sue than buy D2L. The fact that they didn't approach D2L first with demands for licensing fees says to me that they probably expected D2L to show them the door at once, so why not skip that step and go straight for litigation? :-/

      Blackboard wouldn't be t
      • Re: (Score:3, Insightful)

        by Qzukk ( 229616 )
        Disclaimer: Long ago I used to work for Bb. I own Bb stock. I'm rather unhappy with this litigation. :(

        Well then, withdraw your proxy's voting rights, attend the next stockholders' meeting, and voice your concerns.

        More than "must get money at all costs" corporations are beholden to follow their stockholders' wishes. If (in the general scheme of things) stockholders start to express concern that their company is wasting its money patenting someone else's invention, or better yet, express concern that the co
    • It costs a lot of money to file a patent application, which is the only real disincentive not to file tons of applications.

      If you file for a patent, knowing its invalid, and your patent issues, your patent can be invalidated for inequitable conduct.

      Also, if you know your patent is invalid, and try to assert it (i.e. sue someone for patent infringement), you could commit patent misuse (rendering your patent unenforceable) or violate various antitrust (Sherman Act section 1) and unfair competition laws.

    • I've just read the blurb, so don't take this as gospel regarding this specific case.

      The allegation that they withheld prior art is in reference to 37 CFR 1.56, the Duty to Disclose information to the patent office. In brief, this means that if you (the attorney, inventor, or assignee (owner) of the patent application) knows that there is some relevant prior art, regardless of whether or not that establishes novelty or non-obviousness, you are obligated to provide those documents to the USPTO. This is lar

  • Ah, educators! So noble!

    Actually, there *is* a lesson here for all of us, although not the one the evil[TM] lawyers and MBAbees would want us to learn.

  • Negligent? Hm. (Score:3, Interesting)

    by jkabbe ( 631234 ) on Friday September 15, 2006 @11:02AM (#16113601)
    They have argued that Blackboard was negligent in not submitting details of prior art with their patent application

    Negligence won't cut it. On the other hand, it appears that they have extensively argued that Blackboard fraudulently withheld prior art during prosecution.

    That doesn't mean it will go anywhere. Allegations of inequitable conduct are fairly common by defendants. It's very hard to prove an intent to deceive, though.
    • I'm not sure you have to prove intent to decieve. All that needs to be proved is that they knew of a specific piece of prior art and failed to include it in the submission. There is a line you have to sign atesting that you have provided all known prior art. Failing to provide something you know about would be perjury and certainly grounds to invalidate the patent. (Perjury is a felony & there are laws on the books to prohibit profiting from felonious acts - they should apply here.)
      When you file a pate
      • by jkabbe ( 631234 )
        What you are describing is a breach of the Duty of Candor and Good Faith. However, that alone is insufficient to render a patent unenforceable. You must also prove that the applicant intended to deceive the USPTO.
        • Proving they knew of something and signed the document attesting that to their knowledge there was no additional prior art proves a willful act of deception. Given the fraudulent nature of the filing, it should therefore be invalid. Of course this is big business & the law, so should doesn't really play a big role.
          • by jkabbe ( 631234 )
            It has nothing to do with "big business." What you're describing simply isn't the law.
            • It should the way the law is applied. If I do my taxes & sign that I have no additional income, when in fact I have an entire 2nd job, then I have:
              1. Committed purjury - that line states under penalty of purjury.
              2. Committed fraud - I knowingly made false claims with the intent of profiting from those claims.

              That's 2 felonies. IIRC - I have only worked on 1 - that last line on the patent also states that the statements given are true under penalty of perjury. Now if I write up a patent, sign that I know

  • Learning is free (Score:2, Informative)

    by taos23 ( 1003005 )
    To higher ed faculty who are unaware, Available [nfomedia.org] is a modern day web-app, alternative to BB, et al.
    • Thanks for that, I wasn't aware of it. That may be very useful, since I don't have the necessary skills to set up Moodle by myself. In my efforts to boycott Blackboard I had been planning to use open-access WWW pages, supplemented by other facilities, for my coming summer courses; but I'll take a close look at this (Incidentally, they call themselves Nfomedia, not "Available". Is that an old name?)

      They do say it's currently available only to 104 universities, mostly in the USA and a few in the UK, but it d

    • Another alternative to BB is Moodle, http://moodle.org/ [moodle.org]
  • I don't think this could hold. I went to a cyber school that has been operationg since 1995 http://www.stgabrielschool.com/ [stgabrielschool.com] so this "online" learning thing isn't new at least not to me. I did grades 8 - 12 online at home !
  • Ha! If you make it to the very end, you'll find that D2L is counter-suing for five things, amongst which are:

    The court dismiss Blackboard's request for relief
    The court find the patent unenforceable
    The court find the patent invalid
    Attorney and legal fees for D2L's defense of this case
    any other fines that the court deems appropriate

    Man, I hope they win.
  • They also threaten Moodle, which is FOSS.

    Patent fight rattles academic computing

    http://news.yahoo.com/s/ap/20060827/a p_on_hi_te/e_learning_dispute

    Also, Quote:
    ------------
    Every day, millions of students taking online college courses act in
    much the same way as their bricks-and-mortar counterparts. After
    logging on, they move from course to course and do things like submit
    work in virtual drop boxes and view posted grades - all from a
    program running on a PC.
    Click to learn more...

    It may seem self-evident that vi
  • Online learning provider Blackboard, Inc. announced that it has patented the Learning Management System (LMS). Prior art exists in many forms. Please join us in signing the petition below to boycott Blackboard, Inc. for fabricating this ill-conceived and illegitimate patent against the education industry. We fully support those companies that are rightfully fighting this attack on the education industry. Boycott Blackboard Petition [boycottblackboard.org]

People who go to conferences are the ones who shouldn't.

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