I have already mentioned John Mayer's excellent podcast interview with Professor Vince Chiapetta. Mayer's discussion with Professor Mary LaFrance (Willam S. Boyd Professor of Law, UNLV) also advances our understanding of the Blackboard patent case. Professor LaFrance, a high honors graduate of Duke University School of Law, teaches intellectual property law and is co-author of an intellectual property casebook published by West.
Let me highlight a couple of issues that jumped out at me during the LaFrance interview:
It goes without saying that this is all speculation and it's not at all clear how strong a defense estoppel would provide. However, if Professor LaFrance is even the slightest bit correct, then there is no immediate pressure on open source. Sakai, Moodle, and Universities potentially have a defense which is not available to Desire2Learn.
My conclusion? Our aim should be to maintain a common front by pressuring Blackboard into dropping its lawsuit against Desire2Learn. The legal and political route will take a long time, will be expensive all around, and at the end of the day everyone will lose. Following the Educause precedent, it would be helpful if organizations such as Sakai made a strong public statement urging Blackboard to drop its lawsuit.