Rival's Software Sales Are in Contempt of Court, Blackboard Claims

By JEFFREY R. YOUNG

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Blackboard Inc. asked a federal judge in Texas on Tuesday to hold its biggest competitor, Desire2Learn Inc., in contempt of court, accusing the Canadian company of continuing to sell software that was found to have infringed a patent held by Blackboard. But Desire2Learn argues that the new version of its software has been modified sufficiently and does not fall under the court injunction against it.

In March, U.S. District Judge Ron Clark, barred Desire2Learn from any sales of its then-current course-management software in the United States, soon after a jury awarded Blackboard $3.1-million for violating Blackboard's patent on a system of delivering course materials online (The Chronicle, March 21).

Desire2Learn quickly released a new version of its software that its officials said removed features that were found to have infringed Blackboard's patent. But Blackboard officials say they have carefully analyzed the new version and that at least one key patented feature remains—the ability for users to use one account for multiple roles within the system (such as users who might be a teaching assistant for one course and a student in another).

"From our point of view, they are totally flouting the court order," said Matthew Small, Blackboard's general counsel, in an interview on Tuesday. "They made some cosmetic changes to address the patent, but it is in essence the same product and falls within the injunction."

Diane M. Lank, Desire2Learn's general counsel and director of legal affairs, said in an interview on Tuesday that the company remains confident that the new version does not infringe Blackboard's patent.

"We took great pains to study their expert's testimony and so forth and make sure that we were far away from how they thought that we were infringing," she said. She said she had not yet had time to study Blackboard's 18-page court filing made late Tuesday, and so would not comment on the company's specific complaints.

Desire2Learn will be given time to respond to Blackboard's arguments in court before the judge decides on the issue.