Patent fight a boon to open LMS software

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."

Jim Hirsch, associate superintendent of technology for the Plano Independent School District in Texas, said as open-source options develop, marketplace giants should be cautious about the lingering effects of patent fights. Those legal battles could largely influence schools looking to implement open-source technology in the coming years, he said.

"In some ways, this type of patent dispute makes both companies less attractive and open-source alternatives a more likely alternative to consider," Hirsch said in an eMail message to eSchool News. "It’s important that intellectual property rights be maintained according to law. It’s also important to consider the learning environment we try to provide for our students—one of collaboration—so as tools are selected for their use, those companies that provide a wide latitude of use, all the way up to full Creative Commons (open-source) licensing, are fitting more closely to the models our students are preferring."

While Blackboard prepares for another round in the courtroom, the company—perhaps sensing the threat that open courseware systems pose to its business—announced July 16 that it will team with Syracuse University to create software that will allow schools and universities to connect Blackboard’s online environment with the Sakai Foundation’s open-source LMS.

Sakai is a free online learning environment used by teachers and researchers internationally. Teachers can maintain assignments, gradebooks, and syllabi, among other functions.

Blackboard officials said the partnership is part of a long-term effort to create more flexible options for educators hoping to build more personalized sites for their students. Syracuse University researchers will develop a Blackboard-Sakai Connector that will allow access to seamless use between the two systems, and Blackboard says it hopes to develop similar connecting software for users of the Moodle open-course management system.

"Students should not have to worry about whether different technology is powering their online learning environments for different classes," Michael L. Chasen, president and CEO of Blackboard, said in a statement. "With a single login, users should have access to all of their courses and course material. There should be one place they can go to get all of their course information."


Blackboard Inc.

Desire2Learn Inc.



Syracuse University

Denny Carter

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