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D2L: Blackboard's Comments 'Contempt(ible)'

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On the heels of Blackboard's latest court action, Desire2Learn this week posted a response describing some of the commercial LMS leader's comments last week as "contempt(ible)" themselves and nothing more than a cynical attempt to create "fear, uncertainty, [and] doubt" in the marketplace. Blackboard filed a motion last Tuesday for contempt on the grounds that Desire2Learn had not fulfilled its obligations under a court order resulting from a patent infringement suit.

Responding in large part to comments made by Blackboard Chief Legal Officer Matthew Small in this publication, Desire2Learn said that Blackboard's negative comments were false and that its actions in court are designed to stifle competition in a market where Blackboard clearly dominates, at least as far as commercial vendors are concerned. "Blackboard's apparent hope to defeat a formidable competitor is to attempt to strangle it with legal actions, as it cannot compete against a superior product and a company that provides superior client service," Desire2Learn posted Monday in its ongoing blog covering its litigation with Blackboard.

Blackboard's Small had told us that it was his opinion that Desire2Learn's workaround (Learning Environment 8.3) included only "cosmetic changes" in comparison with the previous version, which was found by one court to be infringing on Blackboard's e-learning patent.

Desire2Learn, however, said that 8.3 was a carefully tailored workaround: "Version 8.3 was planned to ensure that we addressed Blackboard's claims, regardless of our opinion of them. We achieved this, while also adding a host of new features and functionality in version 8.3. Then our work was vetted both internally and externally, both by our attorneys and by a highly regarded technology expert."

Desire2Learn, of course, has been working to get Blackboard's patent revoked, an effort that has seen some preliminary success, with the United States Patent and Trademark Office rejecting all of Blackboard's patent claims in a "non-final" action. (This was the result of Desire2Learn's inter partes reexamination request combined with an ex parte reexam request filed by open source advocate The Software Freedom Law Center.)

The company also took issue with Small's comments about schools potentially getting "shut down" and about Desire2Learn's financial stability, both of which are groundless, according to D2L: "As we've demonstrated before, no school is going to get shut down. Not next week, not next year, or anytime. We've already shown that through this litigation. We're a strong, vibrant company that has demonstrated its staying power."

Desire2Learn said it will file its response to Blackboard's contempt motion next week. We'll keep you posted. Further responses to Blackboard's comments and other issues involved in the case can be found here.

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About the author: David Nagel is the executive editor for 1105 Media's online education technology publications, including THE Journal and Campus Technology. He can be reached at dnagel@1105media.com.

Proposals for articles and tips for news stories, as well as questions and comments about this publication, should be submitted to David Nagel, executive editor, at dnagel@1105media.com.

About the Author

Executive Producer David Nagel heads up the editorial department for 1105 Media's education publications — which include two daily sites, a variety of newsletters and two monthly digital magazines covering technology in both K-12 and higher education.

A 21-year publishing veteran, Nagel has led or contributed to dozens of technology, art and business publications.

He can be reached at dnagel@1105media.com. You can also connect with him on LinkedIn at linkedin.com/profile/view?id=10390192 or follow him on Twitter at @THEJournalDave (K-12) or @CampusTechDave (higher education). A selection of David Nagel's articles can be found on this site.


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