March 2008 — News

Print this article

Click here to receive your FREE subscription to T.H.E. Journal

Desire2Learn CEO Makes Case Against Blackboard Patent, Court Ruling

by Dave Nagel

Baker: Now, this is only for what we believe to be self-hosted U.S. clients, which is a small number of our actual total number of clients. Many of our clients in the [United States] use our hosting facilities, which we believe are outside of the [scope of the injunction].

Nagel: For the self-hosted customers, what happens if they don't upgrade? Does that mean that you're paying royalties on that, or is something else implied?

Baker: That's our assumption from both what we understand of Blackboard's perspective as well as ours. We've never talked about an injunction against existing clients or any of our clients. All Blackboard's ever said that they've been seeking is a reasonable royalty for the ongoing use. We're trying to make sure we minimize that by having clients upgrade as soon as they can.

Nagel: When the clients do upgrade, what changes for them?

Baker: Key with the 8.3 release is that it's not just a workaround. There's been about two years of research and development that's gone into it. This is probably going to be the highest-quality release we've ever done. It's had six months of [quality assurance] because we've been waiting for the trial to wrap up before releasing it.

We also listened very carefully to the expert testimony at the trial, as well as the expert testimony that was presented in reports. Because we didn't know what Blackboard was accusing us of doing until that trial, we couldn't really change the application to address what they're accusing us of infringing. Now after the trial wrapped up within about a week or just a little bit over we were able to fully [address] all of the different elements that Blackboard was claiming were infringing the patent.

We used to ship our application with things like sample roles or default roles (depending on who was saying the terminology). We've eliminated those. In that sense, if you draw the analogy to a camera, instead of shipping a camera with some sample pictures on it, now we ship the Learning Environment without roles. And our clients can decide whatever roles they want to create. They can create them themselves. Which is interesting enough. During the trial we did the research, and none of our clients actually used any of the sample roles in the first place. They always made changes and modifications. And in fact we had one client that has 86 roles instead of the three samples we had actually sent.

Nagel: Okay, so that works out. As far as when they do upgrade, will anything about those roles that they've created themselves change, or will they just remain the same?

Baker: We don't know. It's really up to the client in terms of what they want to define as permissions [for the] different roles they create. We're not dictating what they should look like.

Nagel: What I'm saying is by default when they install the upgrade it's not going to wipe out any of the roles they've created?

Baker: We can't comment on that at this point. We're still waiting on legal wording around how to communicate around that....

Nagel: I see. Let's get back to 8.3 in a little bit. I wanted to talk about....

Baker: Maybe just to touch on that a little bit more. The new version that we're shipping to any new clients--and we have a number of new clients we hope to be shipping this to soon--will not come with roles, and the clients themselves can create them, and they can also import permissions. We have some great tools around managing roles and permission sets within our application. One of [the] bigger selling features is the fact that we have the ability for them to create as many roles as they want. So [you] can have homeroom teachers if you're in K-12; you can have parents. If you're in higher education, you can have coordinators, supervisors, librarians, registrars, guest lecturers. You can create as many roles as you want. We're not telling you what you want to create or what roles you implement in the system. But the system does allow the use of as many roles as the client wishes to create.

The key ... with new clients is they're going to come without; with existing clients it's going to be up them them in terms of how they manage their roles.

Nagel: You raised a point I wanted to bring up. You have, I believe, a few percent of the LMS market share in the United States. Is that accurate?

Baker: We're not sure exactly what the market share is that we have, but I would imagine we have probably a few hundred individual campuses that are using [our] technology.

Nagel: As a percentage, would you say it's in the single digits?

Baker: Probably, yes.

Nagel: Do you know what the breakdown is--just of your own clients--between higher ed and K-12?

Baker: The overwhelming majority is higher education in the United States. But we do have a lot of statewide virtual schools....

Nagel: In K-12, what are they using it for? LMSes are not used in the same way in K-12 that they are in higher ed. Is it more on the professional development side?

Baker: Interesting enough, we have clients that are in the K-12 environment that are making more use of it than we typically see in higher education. So it depends on the client in terms of where they are in terms of the maturity of their e-learning model. Some are using it for every student in every class. But that's pretty rare. The majority of them are using it for professional development for teachers. In other cases it's being used for students, whether it's for distance programs or online programs. And in other cases, it's a great mechanism for them to be communicating with parents. Some students, for example, will have their grades posted immediately [so] parents can see it. It really changes the parent-teacher night, if you will. Quite dramatically. Parents are a lot more engaged in the educational process.

Nagel: And that's eventually going to apply to ePortfolio too?

Baker: The ePortfolio really does open up a number of opportunities for other people [who] want to participate or the individual user wants to participate with--to create social networks to invite in parents to invite in friends to open up the learning to a different ... group of stakeholders [from] what's traditional in the classroom.

Nagel: Back to market share. Regarding your percentage there, basically your small market share in the United States was part of your argument against the injunction. Would you explain that?