The NOSE

A TKO Victory for Desire2Learn against Blackboard

On July 27, 2009 the United States Court of Appeals for the Federal Circuit issued a resounding victory to Desire2Learn Inc. in its patent battle against Blackboard Inc.  In the patent war the ruling is likely to be the beginning of the end for the Goliath Blackboard, which has waged an unrelenting, and some would say ruthless, campaign to crush its small and outgunned Canadian competitor based near Waterloo, Ontario.

This is the first in a series of posts which attempts to take stock of the litigation battle and its significance for IT in higher education. There are multiple strands in this story. Let's begin with the key facts surrounding the central litigation.

The Patent. On July 26, 2006, the USPTO granted Blackboard a patent (U.S. Patent No. 6,988,138, "the '138 patent") for invention of an "Internet-based educational support system and related methods." Immediately that day, Blackboard filed an infringement suit against Desire2Learn in the U.S. District Court for the Eastern District of Texas.

The Court Case in East Texas. The '138 patent consists of 38 "claims" of intellectual property. On October 2007 the district court invalidated claims 1-35 for reasons of "indefiniteness" but held that a jury trial was warranted and should proceed for claims 36-38. On February 22, 2008 a jury found Desire2Learn guilty of patent infringement on claims 36-38 and awarded damages of approximately $3 million.

The Appeal. On May 12, 2008 and May 13, 2008 D2L and Blackboard each filed their notice of appeal, respectively. Blackboard sought to reinstate the validity of claims 1-35, while D2L sought to reverse the trial ruling and to invalidate claims 36-38. On July 27, 2009 the U.S. Court of Appeals for the Federal Circuit granted D2L a decisive victory on both counts by a) affirming the district court's decision that claims 1-35 are invalid and b) reversing the district court's ruling on claims 36-38. In brief, the Appellate Court invalidated all 38 claims in the '138 patent. The ruling is subject to further appeal, including all the way up to the U.S. Supreme Court. But, according to at least one patent attorney, the likelihood of Blackboard succeeding now is very dim.

In the next installment I examine the patent itself from a technical and legal perspective, particularly in the light of the new appellate ruling.

LEiA: Learning Environment powered by Intelligent Analytics

During my Expert Panel discussion today at the Desire2Learn Users Conference I will introduce the concept of LEiA (named after Princess Leia), a Learning Environment powered by Intelligent Analytics.

• What is LEiA? LEiA is a framework for research, design, and development of the next generation Learning Environment powered by Intelligent Analytics.
• How does it work? LEiA is an intelligent system, dependent on a set of infrastructure services, that dynamically presents a learner with optimized learning opportunities based on who she is, where she is, the environment and situation she is in, and the people with whom she is connected.
• What does LEiA need to know about the learner? LEiA takes four input vectors to generate the optimized learning opportunity:
  
  
  • Location Awareness. Where I am: my physical coordinates.
  • Situation Awareness. The situation I am in: my context, situation, and environment.
  • Identity Awareness. Who I am: my attributes, past behaviors, learning styles, and preferences.
  • Social Awareness. Who I am with: my friends, peers, mentors, and teachers.
• What is the Intelligent Analytics part of LEiA? The Analytic Engine is the model which dynamically generates the learning opportunity ("what the learner needs") based on the four input vectors described above.

The Problem with IT Security: Why We Are Losing the Battle

IT investment in security is incommensurate with the emerging threats. Most organizations continue to approach security as if the enemy is the former Soviet Union instead of Al Qaeda. During the cold war our defense posture relied heavily on nuclear deterrence, which meant building deadlier bombs and putting them on payload systems that could incinerate entire cities in a flash. On 9/11 it took only a handful of Islamic crazies to bypass our entire security apparatus, shaking our foundation and nearly bringing the entire country to its knees. 

In IT the highest spend continues to be in firewalls and anti-virus software. These are the equivalent of ICBMS swallowing up more and more of the security budget. Both are needed but they don't come close to addressing the new generation of risks. As Adam Muntner of QuietMove notes: "For most organizations -- even some Fortune 1000 companies we work with --- security spending is not even close to be being in line with the risks and threats they are trying to address."

The 5 Big Emerging Threats are:

1. Trusted Users and Partners. We are exposing more and more data to more and more "trusted" people without proper monitoring and authorization.
2. Web Application Vulnerabilities. According to a Gartner estimate 75 percent of current attacks take place through application vulnerabilities. Most organizations, particularly software developers, remain clueless about application security.  
3. Missing or Stolen Devices. Enterprise data is now ubiquitous in everything from unencrypted laptops to mobile phones.
4. Custom Malware. Signature-based anti-virus systems are completely ineffectual against custom malware. Traditional armies wear identifiable uniforms. Guerillas and terrorists don't.
5. Social Engineering. How many of our even "sophisticated" users fall prey to phishing attacks or share their passwords with strangers?

Most security organizations are fighting the old enemy and it's only a matter of time before our organizations experience our version of the Twin Towers.

Source: Baseline Magazine, June 2008. "Closing the IT Security Gap."