Blackboard Loses on Appeal

Inside Higher Ed reports on Blackboard's latest loss, which is good news for universities and colleges who use open source software because we can be sure that despite their disclaimers, Blackboard would certainly move against open source courseware if they succeed against Desire2Learn and other private companies. Blackboard's loss is also an affirmation of common sense since anyone with long-time experience in course management software knew that Blackboard's patent claims were simply assertions, not valid original contributions to courseware delivery methods. ____JH

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"Both companies appealed the parts of the case they'd lost to the U.S. Court of Appeals for the Federal Circuit, which has nationwide jurisdiction over U.S. patent claims. Its highly technical decision upheld the lower court's conclusion that Blackboard's claims 1-35 were invalid. But the three-judge panel rejected the lower court's finding that Blackboard's patented learning system had originated the approach of giving a single user with a single log-in multiple roles, such as being a teacher in one course and a student in another."

"The appeals panel embraced Desire2Learn's argument that such technology existed in 'prior art,' in this case previously existing course management systems such as Serf and CourseInfo 1.5. The appeals court essentially ruled that the lower court judge had framed Blackboard's claim incorrectly for the jury, said Bruce T. Wieder, a lawyer for the Washington firm of Dow Lohnes who was not involved in the case. Having done so, the Federal Circuit court "could have said, 'This is how you should have interpreted it, you go look at it again,' " Wieder said. "But instead, the court said, 'Since we've seen what was argued, we now can say that the district court wouldn't have come to any conclusion,' and declared those claims invalid."

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