What the Injunction Says

TUESDAY, MARCH 11, 2008

What the Injunction Says

From the injunction signed by Judge Clark on 3/11/08: Desire2Learn (is) hereby restrained and enjoined... (after a 60-day stay)
"from using in the United States, offering to sell for use in the United States, or selling for use in the United States, either alone or in combination with any products, services or systems: 1. the method of providing online education implemented in accordance with the Desire2Learn Learning Environment (version 8.2.2 and earlier versions)"
"Desire2Learn is further restrained and enjoined from inducing infringement of claims 36, 37 and 38 of the ’138 patent by encouraging, supporting, aiding, or abetting the use in the United States of: 1. the method of providing online education implemented in accordance with the Desire2Learn Learning Environment (version 8.2.2 and earlier versions) heretofore marketed by Defendant; and 2. all other methods for providing online education not more than colorably different therefrom;"
This last paragraph was not expected. As I read it , after the 60-day period has expired, D2L version 8.2.2. and all earlier versions cannot be used in the United States. Please correct me if I am reading that wrong. It could be that this piece will go away if the two parties agree on a royalty rate for the use of the "patented technology" (quotes intentional) by Desire2Learn. If a royalty rate is agreed to by March 20, then I assume that D2L pays Blackbeard that royalty rate for all existing uses of the D2L VLE as opposed to not being able to use the D2L VLE at all in the U.S.
What does D2L have to say about the injunction?
"Desire2Learn's position has been and remains twofold: (1) that the patent is invalid; and (2) that even should the patent survive appeal and both reexaminations, Desire2Learn can easily and cheaply redesign its product so that it falls well outside the boundaries of the asserted claims of the patent. We have already completed the vast bulk of the work for this redesign. As a result of the Court's Order, we are expediting our efforts to finish our work and to provide to all clients and prospects a version of our Learning Environment that leaves no doubt as to noninfringement. We expect to release the redesigned product in the next few weeks and well before the end of the 60-day grace period that the Court has granted." (emphasis mine)
What does Blackboard have to say?
"Over the coming sixty days, we are committed to collaborating with Desire2Learn to seek a resolution that enables their existing clients continued access to Desire2Learn teaching and learning solutions." Translation: Look judge - we're really trying to be nice here. We truly want D2L to be able to play in the sandbox with us - really, truly, we do, we do, we do!! It's not our fault that D2L won't be able to satisfy our demands now that we hold all the cards.
"We are of course gratified that the jury in February recognized the validity and importance of our contribution to e-Learning. For over ten years, we have been fortunate to be a part of a period of unprecedented technology innovation in the educational industry." Translation: can you believe that we were able to get a jury trial for this? Thank God that there wasn't anyone on that jury who has worked in e-learning over that 10 year period. We are so fortunate to be able to take credit for the "technology innovation" created by others - see, now the whole industry is benefiting!
"We also know that you may receive questions from colleagues so we will keep you posted as events warrant on any additional elements of this patent process in the coming weeks and months." Translation: we really need all of you to cover our backside so that we don't get a full-blown boycott on our hands.
"Thank you again for your interest, for the honest feedback you’ve provided throughout this process, and for your partnership in moving forward. We know we serve an actively engaged and passionate community of educators and learners and truly value the opportunity to do so." Translation: hey - we know that you're pissed off, but come on - we WON!! Your feedback has been so honest that we really can't tell whether you're fer us or agin' us, but either way our stockholders really value your passion for education (choke).
Prediction #1: Since D2L is playing against an unfairly stacked deck - expect them to have a very difficult time getting a positive ruling that their work-around is successful at NOT infringing. Why? Because Blackbeard wants them to continue to infringe. Bb will do everything in their power to make sure that any work-around is not seen as being valid. This is where the idiotic will really become absurd. Bb has said all along that their patent claim is "very narrowly defined." Just wait until D2L has a work-around in place and then you'll see how Bb's definition continues to grow and grow (much like the nose on their corporate face) so as to continue to include D2L's "method" as an infringement to this method patent.
Prediction #2: Blackbeard will not sue another U.S. company, such as Angel or eCollege or Educator. They somehow feel safe in suing a Canadian company and know that they get preferential treatment in a U.S. court against the wayward Canadians. With as much wrath as they have felt from the educational community for this suit, I think you can double it if they sue an American company.
Prediction #3: Blackbeard will continue to lose sales in the U.S. even if the patent is upheld and even if D2L and others are unable to stop infringing on the patent. I have not talked to one Blackboard client/user who approves of what they've done or how they've done it. Most former WebCT clients can't wait for their contracts to expire so they can leave the BlackCT jungle. Bb stockholders will be very upset over the next few years as they see the client base shrinking. Even though it has always been an inferior product, Bb has been able to get their monopoly in the market because of other factors such as marketing and slick salespeople, and of course that WebCT merger that never should have been allowed. Those things won't work in the future because everyone knows that this company doesn't play fair and can't be trusted.

Posted by Barry Dahl at 10:05 PM

Correction on the Correction: Injunction Signed

Wow, every time I step away from my computer for an hour or so, something important comes in. I just got back from playing racketball with my kid and find an email from Jim Farmer with attached documents showing that Judge Clark did in fact sign a 4-page injunction dated today (3/11) that that prevents D2L from selling it's products in the U.S. He then stayed that injunction for the next 60 days while additional legal wrangling will occur.
I'm off now to another appointment now so probably won't get back to this until late tonight, if then. You should be able to read more about it at all the usual suspects. More later.

Posted by Barry Dahl at 6:37 PM

Correction: No Ruling on Injunction

Last night I saw the following Twitter posts while searching for news about any action in the East Texas courtroom regarding Desire2Lerarn and Blackboard. Judge Clark apparently did NOT issue an order of any kind. He has put a hold on things for 10 days in order for the two sides to talk - apparently, according to a good source.

Al Essa tweeted what he believed to be true based on a court document that he saw. The document does in fact say that "Court will enter a written Judgment and Permanent Injunction."
To tell you the truth, I'm more confused now than I was 15 minutes ago. Desire2Learn is expected to issue a statement this afternoon. Maybe some clarity, let's hope.

Posted by Barry Dahl at 11:24 AM

MONDAY, MARCH 10, 2008

Blackboard Lies and Liars

Blackboard is working hard on becoming the most hated corporation in the education market. Anyone paying attention will easily come to the conclusion that these people do not play fair; are not collegial in any way , shape, or form; and fully deserve to be shunned by the educational industry that they seek to monopolize.
More dirt about Blackboard comes from the information released by D2L in their response to BB's Motion for Permanent Injunction. See pages 10-11 of 18.
"In the past three years, Bb has made two requests to the government of the United States for assistance in helping Bb avoid competing in a free and open market. Bb successfully advocated to the United States Department of Justice that Bb’s absorption of the second-largest CMS provider in the market would not adversely affect competition, in large part because its competitor, D2L, had “continuing momentum” that would prevent Bb from having undue market power after the merger. However, almost immediately upon completing its merger, Bb turned to this Court and now asks the Court to enter a permanent injunction to eliminate the very competition that Bb told the Department of Justice justified the merger.
Worse yet, from before the time of its first submission to the Department of Justice, Bb knew that the PTO had allowed the patent. Bb, nevertheless, continued to ask the Department of Justice to approve the merger because competition was “robust and increasing,” “vigorous and growing,” and because of the “vigorous competition that Bb faces and will continue to face.” Bb never told the Department of Justice that Bb had been issued a patent that it planned to use to hobble or eliminate competition in the CMS market. Bb went so far as to argue to the Department of Justice that “Bb will not be able to raise prices or otherwise impact competition unilaterally because of the increasingly strong competition from these numerous and diverse sources.”
Let's recap: Blackbeard tells the DoJ that the WebCT merger should be allowed because it has ample competition in the market while specifically mentioning D2L, they don't tell the DoJ about the patent that would severely limit competition which they already knew was being granted by the USPTO, and then they immediately sue D2L once the patent is issued in order to reduce competition.
And who are the upstanding Americans that are getting away with gaming the system? Below you'll see them on stage at Educause courtesy of a CC-licensed photo by Al Essa. I added my own editing touches and then published it under the same CC-Attribution, Share-Alike license that Al used.

If the one on the right is Blackbeard, then the one on the left must be Benjamin Hornigold - the pirate known as Blackbeard's tutor. Of course I could be wrong.
Updated mid-afternoon: Blackboard announces today that they are entering the video surveillance business for colleges. HUGE QUESTION: WHO THE HELL IS WATCHING BLACKBOARD??? WHERE IS OUR SURVEILLANCE SYSTEM FOR THEM???
Another update: Monday evening - apparently the Texas judge grants permanent injunction to Blackboard barring all sales by Desire2Learn in the U.S. Looking for more info. WRONG!!! WRONG!!! WRONG!!! - see new post for complete mea culpa

Posted by Barry Dahl at 7:00 AM

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From desire2blog.blogspot.com/2008/03/what-injunction-says.html 6 April 2008