Monday, July 27, 2009

BlackBoard whacked by CAFC

BlackBoard's case took a bad turn at the CAFC, as it continued to lose on claims 1-35 and additionally lost on claims 36-38.

CampusTechnology wrote:

Blackboard's patent on learning management system technologies has been overturned by the United States Court of Appeals for the Federal Circuit [CAFC]. The court ruled July 27 in favor of Desire2Learn and invalidated some claims in patent No. 6,988,138, also known as the "Alcorn patent" or the "138 patent."

BlackBoard's "worse off then before" situation arose with the meaning of "single login".
The CAFC wrote -->

Desire2Learn argues that two prior art references anticipate claims 36-38 as a
matter of law. That argument turns on whether those claims contain a “single login”
limitation. Blackboard asserts that the “single login” feature is the ’138 patent’s
essential improvement over the prior art and is a part of every claim of the patent.
According to Blackboard, under the prior art systems “[a] person could not be a student
in one course and a teacher in another using one user name and password,” whereas
the ’138 patent enables a person “to access all his roles in all his courses at once. With
a single login and password, a person could be a student in one course and a teacher in
another during one interaction with the system.”

After analysis of the term "single login," the CAFC finished off BlackBoard:

Desire2Learn argues that if claims 36-38 of the ’138 patent do not require that a
person using the claimed method be able to access multiple roles in multiple courses
using a single login, then the claims are anticipated and rendered obvious by two
references in the prior art, CourseInfo 1.5 and Serf.


Instead, once the claims are properly construed, the conclusion of anticipation is
dictated by the testimony of Blackboard’s own witnesses and the documentary evidence
that was presented to the jury. Based on that evidence, and in the absence of a “single
login” requirement in claims 36-38, it is clear that the prior art contains every limitation of
those claims.

Of means plus function:

It is well settled that “if one employs means-plus-function language in a claim,
one must set forth in the specification an adequate disclosure showing what is meant by
that language.” In re Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (en banc). If
the specification does not contain an adequate disclosure of the structure that
corresponds to the claimed function, the patentee will have “failed to particularly point
out and distinctly claim the invention as required by the second paragraph of section
112,” which renders the claim invalid for indefiniteness. Id.


In Aristocrat Technologies Australia Pty Ltd. v. International Game Technology,
521 F.3d 1328, 1331 (Fed. Cir. 2008), we addressed the question whether a general
reference to “a standard microprocessor-based gaming machine with appropriate
programming” constituted a sufficient disclosure of structure to support a claimed
function in a means-plus-function claim. We concluded that it did not. First, we
explained that “[t]he point of the requirement that the patentee disclose particular
structure in the specification and that the scope of the patent claims be limited to that
structure and its equivalents is to avoid pure functional claiming.” Id. at 1333.

Bottom line -->

In summary, we affirm the district court’s decision that claims 1-35 are invalid as
indefinite. Because we hold that under the proper construction of claim 36, claims 36-
38 are anticipated as a matter of law, we reverse the district court’s failure to grant
JMOL on that issue. We do not reach Desire2Learn’s assertion that claims 36-38 are
obvious. We also do not address the parties’ contentions with respect to infringement of
those claims. Based on our rulings in appeals No. 2008-1368 and 2008-1396,
Blackboard’s appeal in No. 2008-1548, which pertains to the award of costs in the
district court, is dismissed as moot.

**See also

***EduGeek Journal wrote:

But, really… how long can a poorly run business stay afloat in this economy? Much wiser companies than Blackboard have vanished overnight because of their minor missteps. Bb is making massive mistakes and has still managed to hang on. Might be something to consider if you are thinking of sinking any more money into any form of the Bb LMS.

Hmmm, "how long?" -- as long as universities keep buying their product?


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