Court Strikes Down Blackboard E-Learning Patent

from the took-'em-long-enough dept

Tue, Jul 28th 2009 4:16pm — Mike Masnick

You may recall that Blackboard, an e-learning company, got itself a patent a while back that seemed to cover pretty much all e-learning -- and then went about suing others. After a lot of controversy, the company agreed not to sue open source e-learning companies, but everyone else was fair game. The only problem? The patent was almost certainly ridiculous, and numerous thorough breakdowns of the patent raised serious questions about how it ever was approved in the first place. But, of course, the process of invalidating a patent is notoriously slow, and a company can cause lots of trouble in the meantime. In Blackboard's case, it went after competitor Desire2Learn.

Even as the Patent Office realized it needed to rethink the patent, the lawsuit moved forward, with Blackboard scoring a win. Of course, just weeks later, the USPTO gave an initial rejection of the patent. The original court ruling was (of course) appealed (separate from the USPTO ruling), and the good news is that the appeals court has dumped the entire patent. Only took a few years and millions of dollars wasted in legal fees for Desire2Learn. Too bad such money couldn't have gone towards actually improving e-learning. In the meantime, why doesn't anyone ask how such a patent got approved in the first place?

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Filed Under: e-learning, invalid, patent
Companies: blackboard, desire2learn

27 Comments

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Anonymous Coward, 28 Jul 2009 @ 4:57pm

Easy. It issued before the Supreme Court woke up and paid attention in cases like KSR.
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CleverName, 28 Jul 2009 @ 5:19pm

And yet
there are those who will continue to say it was a good patent.
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anon, 28 Jul 2009 @ 5:36pm

Its not over.
There are also continuation patents, a Canadian patent, and an ITC complaint.
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DJ (profile), 28 Jul 2009 @ 5:42pm

All e-learning, you say?
I'd like to see 'em come after the e-learning the Navy uses....
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Anonymous Coward, 28 Jul 2009 @ 5:49pm

Yet another example of a broken patent in our broken patent system. And for those who say, "this is the exception, not the rule" I have challenged you before to come up with examples of good patents and no one yet has. The fact remains, we can come up with far more examples of stupid patents than the amount of examples the pro patenters can come up with. Why not start a blog with examples of good patents and use those examples to defend our patent system? I'm sure if patents are so useful you should be able to list enough good patents to create a compelling case.
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DJ (profile), 28 Jul 2009 @ 5:52pm

Re:
Good patent: oscillating lawn sprinkler

Done.
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DJ (profile), 28 Jul 2009 @ 5:54pm

Re:
"you should be able to list enough good patents to create a compelling case."

I doubt that. I could only come up with one.
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DJ (profile), 28 Jul 2009 @ 5:56pm

Re: Re:
Two: Cotton gin
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Anonymous Coward, 28 Jul 2009 @ 6:04pm

Re: Re: Re:
But the patent didn't really do him any good.

"And here, all their troubles began. Farmers throughout Georgia resented having to go to Whitney's gins where they had to pay what they regarded as an exorbitant tax. Instead planters began making their own versions of Whitney's gin and claiming they were "new" inventions. Miller brought costly suits against the owners of these pirated versions but because of a loophole in the wording of the 1793 patent act, they were unable to win any suits until 1800, when the law was changed.

Struggling to make a profit and mired in legal battles, the partners finally agreed to license gins at a reasonable price. In 1802 South Carolina agreed to purchase Whitney's patent right for $50,000 but delayed in paying it. The partners also arranged to sell the patent rights to North Carolina and Tennessee. By the time even the Georgia courts recognized the wrongs done to Whitney, only one year of his patent remained. In 1808 and again in 1812 he humbly petitioned Congress for a renewal of his patent."

http://www.archives.gov/education/lessons/cotton-gin-patent/

Also found this interesting (same link).

"However, like many inventors, Whitney (who died in 1825) could not have foreseen the ways in which his invention would change society for the worse. The most significant of these was the growth of slavery."
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Anonymous Coward, 28 Jul 2009 @ 6:04pm

Three: Wheel
http://news.bbc.co.uk/2/hi/asia-pacific/1418165.stm
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Anonymous Coward, 28 Jul 2009 @ 6:05pm

Re: Re: Re: Re:
In other words this is just more evidence that patents don't help the little guy, they only help the rich and the powerful.
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ChurchHatesTucker (profile), 28 Jul 2009 @ 6:07pm

Wasted?
"Only took a few years and millions of dollars wasted in legal fees for Desire2Learn. "

Spoken like a non-lawyer.
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DJ (profile), 28 Jul 2009 @ 6:08pm

Re: Re: Re: Re:
point taken. ok so we're back to one.
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DJ (profile), 28 Jul 2009 @ 6:10pm

Re:
the wheel was one of the great inventions of all time.

It was never patented. So it is NOT number three
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Anonymous Coward, 28 Jul 2009 @ 6:15pm

Re: Re:
He said it as a joke, obviously. Read his URL.
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DJ (profile), 28 Jul 2009 @ 6:16pm

Re: Re: Re:
No
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Fred McTaker (profile), 28 Jul 2009 @ 6:20pm

Lawyer Up, Rubber Stamp, Cash In, in that order
The USPTO isn't for "inventors" anymore, if it ever was. It's for Lawyers. Lawyers get all the fees for helping to draft patents, search for related patents, provide fake "prior art searches" (ha!), and usually get a piece of the submission fees too. After a Lawyer confuses the Patent Examiner enough, with their particular brand of pseudoscience and gibberish jargon, you're practically guaranteed a rubber stamp on your patent application. The Examiner is urged to move through their checkboxes and on to the next rubber stamp ASAP. The Examiners have a quota after all -- approving dreck and letting the courts handle the fall-out takes much less time than handling appeals and revisions directly. After that, a Lawyer (usually among the same set, if not the exact same as the application Lawyer, or even an ex-Examiner) gets money again any time the rubber-stamped patent is "enforced", which always happens in the courts, usually via settlement. Even in settlements, a lawyer makes money on the defense side too, for helping to draft the settlement. If the case actually goes to court, lawyers on both sides internally scream "I hit the big one!", and bilk both sides for all they can get. They spend the whole time pretending to care about philosophical inanity like "novelty" and "true innovation value", which has nothing to do with their real motives.

I wonder how many ex-Examiners and Patent Lawyers live in East Texas, how many current Judges list that as past experience on their CV, and how many gallons of expensive booze are drank, and cigars are smoked, lit from money printed with many 0's, before being thrown into the fireplaces inside the Judges' chambers.

Win-win for them, and we all lose.
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Steve R. (profile), 28 Jul 2009 @ 7:03pm

Re: Re: Oscillating Law Sprinkler
Points to what is wrong with our patent system. I don't have a problem with a patent on a lawn sprinkler that has actual design drawings. However, the idea of an oscillating lawn sprinkler cannot be patented.

The patent system should leave a competitor free to design another version of an oscillating lawn sprinkler. (It seems that the concept of reverse engineering has been hounded out of existence.)

Abstract concepts, such as business models or the concept of an Oscillating Law Sprinkler should not be patented.
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bigpicture, 28 Jul 2009 @ 7:49pm

Re: Re: Lawn sprinkler
Was that the vertical oscillation, the horizontal oscillation, or the oscillating rotating impact spray model? Or the wife with a fan spray nozzle?

Do I really need a patent to water my lawn? Oh, I know I'll patent the rain, the condensing lawn sprinkler.
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Reed, 28 Jul 2009 @ 8:22pm

Got to hand it to the courts
This a very important decision as Blackboard was acting as if it had a monopoly on delivering class content on the Internet.

Imagine how ludicrous it would be to allow a single company to control all of e-learning. That is what was happening up until this point.

Although they did back off open source projects in the end, they were very hostile at first and are still very hostile to any other commercial offerings.

I actually used BB for several online classes and components of face to face classes. I found their offering to be quite sub-par. I remember thinking my BBS had a better commenting and messgae board system... lol

Seriously though, I hope to see real innovation going on here because e-learning needs to embrace the possibilities of technology.

Something as simple as just having an actual picture of a student next to their comments would be great.

That is until someone patents that process as well :)
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Anonymous Coward, 28 Jul 2009 @ 10:18pm

Re: Got to hand it to the courts
I've also used blackboard in some of my classes, and I agree. It's really poor quality, especially for a paid product.
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Stephen Downes (profile), 29 Jul 2009 @ 6:49am

> why doesn't anyone ask how such a patent got approved in the first place?

What, you think nobody asked this? You think nobody in the learning community has been talking about this? D2L got a big boost from the community in this case as people got together and argued - via a wiki - that the patents should never have been approved in the first place. This page - http://en.wikipedia.org/wiki/History_of_virtual_learning_environments - was created specifically in response to the question you say nobody asked.
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Anonymous Coward, 29 Jul 2009 @ 12:37pm

What is this? Patent first, ask questions later? What does a patent have to go through to get approved, and how do so many patents get passed that shouldn't?
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Anonymous Coward, 30 Jul 2009 @ 8:43am

Re:
3220392 - The very first engine compression brake...70 years in the making!
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Anonymous Coward, 30 Jul 2009 @ 8:46am

Re: Re:
Patented by a sole inventor. A mechanism that was MASSIVELY innovative and enabled MASSIVE numbers of innovations - but only after Cummins worked on it for DECADES. Who would have guessed?
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Josh K, 2 Aug 2009 @ 8:34pm

New Competition for Blackboard
I think this is blackboard attempting to fight back from other products such as Sakai and Moodle from breaking off Blackboard's market share. Blackboard has seen a lot of new competition from a variety of sources.

For more on patent infringement see, http://www.generalpatent.com/patent-infringement
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Anonymous Coward, 13 Aug 2009 @ 5:10am

I wonder if Desire2Learn can claim back it's legal fees from defending against a bad patent from USPTO? That would give USPTO quite an incentive not to issue bad patents.
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