As learning management system (LMS) provider Blackboard Inc. continues its protracted legal battle with rival Desire2Learn, educators say the ongoing dispute over patent infringement could make the growing list of open-source LMS competitors more attractive to school leaders.

Blackboard last month filed a motion against Desire2Learn asking a U.S. federal court in Texas to hold the company in contempt of court. The motion was the latest development in a legal fight that began in 2006, when Blackboard attorneys claimed Desire2Learn's products violated patent laws. In February, Blackboard was awarded $3.2 million and an injunction against Desire2Learn to prevent sales of products that infringed on Blackboard's patent.

Blackboard claims Canadian-based Desire2Learn "made only transparently cosmetic changes" to software that mimicked Blackboard's. Desire2Learn said it made the necessary changes—but five months after the court's decision to compensate Blackboard, Blackboard attorneys claim Desire2Learn is still infringing on the patent.

Desire2Learn officials say their latest course-management software, version 8.3, does not violate Blackboard's patents, adding they will "defend version 8.3 vigorously." In a July 2 response to Blackboard's motion of contempt, Desire2Learn said: "Blackboard bases its motion on nothing more than a series of flip-flops, distractions, and misstatements."

"Despite having obtained a jury verdict based on this argument (for a fraction of the amount sought), Blackboard now makes a 180-degree turn and claims that removal of the same ‘sample' roles represents only a ‘transparently cosmetic' or ‘superficial' change from earlier versions," Desire2Learn's statement says. "The court should not accept such disingenuousness."

Blackboard officials argue that, despite name changes to Desire2Learn's LMS products, their functionality has not been altered enough to satisfy requests to avoid patent violations.

"Blackboard has reviewed Desire2Learn's latest release in detail and has concluded that the functionality that was found to infringe Blackboard's patent has not been removed," the statement said. "As a result, Blackboard is asking the court to ensure that Desire2Learn complies with the permanent injunction."

The companies are expected to lay out their arguments before a court July 21.

Educators in K-12 schools and colleges nationwide continue to use both companies' products—especially Blackboard's market-leading Blackboard Learning System—but some in the education community say this drawn-out legal fight could give competitors a rare chance to lure customers away from the giants of the course-management software world.

"While uncertainty in the marketplace can create problems for those involved in these matters, as well as their competitors, I think that Blackboard and Desire2Learn have much more to worry about than this lawsuit, and that is the onslaught of open-source learning management systems such as Moodle and Angel," said Bob Moore, executive director of IT services for the Blue Valley Union School District in Kansas, referring to two other course-management solutions that have gained popularity in recent years. "Districts would be wise to consider these alternatives."