Seb Schmoller in Fortnightly Mailing reports that the USPTO has granted Desire2Learn's inter partes application for re-examination of the Blackboard patent. Schmoller notes, "So US Patent Number 6988138 is to be re-examined from two directions: firstly as a result of the ex parte application by the Software Freedom Law Centre; and secondly as a result of Desire2Learn's inter partes application. You would expect both Blackboard's and Desire2Learn's patent information sites to carry commentary on this in the next few days, but from a common sense point of view the refusal of the East Texas patent court last year to stay Blackboard's patent infringement claim against Desire2Learn, pending the results of the re-examination requests (if granted), makes for a particularly messy situation."
It's anyone's guess but I think it's inevitable that the patent will eventually be overturned. However, if the East Texas patent court rules in favor of Blackboard Inc. before the USPTO ruling. D2L could still be in a world of hurt. In the Blackberry patent case RIM ended up paying $612.5 million as settlement to NTP even though the re-examination later went in its favor.