Desire2Learn‘s challenge of Blackboard‘s e-learning patents have resulted in an initial action by the U.S. Patent and Trademark Office that invalidated all 44 of the Blackboard patents questioned. The action is not final, yet, and both parties have 60 days to respond. But, as eSchool News points out, the ruling raises questions about the validity of e-learning patents:

Blackboard claims that the majority of patents undergoing a reexamination of this kind are ultimately upheld, but D2L’s Baker says that Blackboard seems to be pointing to statistics from ex parte reexaminations, rather than from inter partes patent reexaminations. “The majority of inter partes [reexaminations, which D2L has filed,] have resulted in the patent being fully rejected,” he said.

USPTO figures confirm Baker’s assertion. About a quarter of all ex parte reexaminations result in the original patent being upheld, and 64 percent cause the patent holder to make changes to its patent, according to the federal patent office. Only 10 percent of ex parte actions result in the outright cancellation of a patent. But for inter partes requests, 75 percent of patents are cancelled and only 8 percent are confirmed; the rest are changed by the patent holder.

In the past, I (and others) have been highly critical of Blackboard for cornering the e-learning market by enforcing no-brainer patents where it seems that a vast library of prior works must exist. This not only hinders the development of competitive products, but also provides little incentive for Blackboard to improve their own product. Even the development of innovative uses of Blackboard’s products is discouraged. Following my post that discussed a critical flaw in Blackboard’s SafeAssign product, a leader of a software development company called with news that Blackboard’s lawyers threatened legal action if they were to continue development of a Facebook integration widget.

If Blackboard’s patents are conclusively rejected, the ruling could usher in a new era of innovation in e-learning. This case will be fascinating to follow over the next few months.

About John Moravec

Dr. John Moravec is a faculty member in the Department of Organizational Leadership, Policy, and Development and the Innovation Studies/Master of Liberal Studies graduate programs at the University of Minnesota. He is the principal of Education Futures LLC; a co-founder of the Horizon Forum, a roundtable on the future of education at all levels; and is the editor of Education Futures. He can be emailed at john@educationfutures.com.

http://www.educationfutures.com/john