CALIopolis

The Desire2Learn website that is tracking the BlackBoard v. Desire2Learn patent lititgation has posted a ruling (PDF) by Judge Clark denying Bb's motion to dismiss D2L's Inequitable Conduct claims.

Inequitable Conduct is described at the Nixon, Peabody law firm website this way...

"...Inequitable conduct is a serious concern to patent holders. Unlike invalidity, which may strike a single patent claim but leave others, inequitable conduct takes out the entire patent and, quite possibly, later continuations and divisional applications...."

... so this is a big victory for the D2L side of the lawsuit. Nixon, Peabody further mention...

"...To find a patent unenforceable due to inequitable conduct, an alleged infringer bears a significant burden of showing inequitable conduct in the patent process through a failure to disclose material information or submission of false material information with intent to deceive. What information is “material,” however, is the source of endless legal wrangling. And although intent to deceive is typically inferred from the surrounding circumstances, it cannot be found solely from the fact that information was not disclosed. There must be a factual basis for finding deceptive intent. Moreover, those two elements, materiality and intent, must be proven by clear and convincing evidence. Finally, if the threshold levels of materiality and intent are proven, the court must still balance the materiality with intent to determine if the conduct as a whole was inequitable...."

If you read the entire Nixon, Peabody article, though, you will realize that this is far from settled, but that's not the point I wanted to make.

D2L passed the first hurdle by successfully defending this defense against a quick dismissal. It will now be a part of the trial and subject to all kinds of discovery, deposition, expert witness testimony, etc. This case just got a lot longer and more complicated.

After reading the decision, I re-listened to my podcast interview with Professor Vince Chiapetta from Willamette University School of Law and have reproduced the relevant section here as a 14 minute podcast.

Click to listen or right click to download - ChiapettaInequitableConduct.mp3

Professor Chiapetta reminded me that there might be a linkage to the inequitable conduct defense and possible Sherman Act (antitrust) cross-claims that Desire2Learn could bring against BlackBoard. Remember, we still don't know what or how much BlackBoard disclosed to the Department of Justice during the review of their purchase of WebCT back in January of this year.

A finding of inequitable conduct - still a far from sure bet - with a paucity of disclosure to the DOJ would be rather damaging to BlackBoard's case I believe.

Please note that IANAL (I am not a lawyer) and none of this should be construed as legal advice).

Elmer Masters, CALI's Director of Internet Development is participating in the group blog "Law School Innovations" and his first post elicited this comment from im Milles on podcasting...

"...Secondly--and as a podcaster myself, this may be surprising coming from me--I'm not sure that the CALI model of course podcasting represents innovation. The most engaging law school classes tend to be those with a high degree of interaction among the instructor and the students. I'm not talking about the tedious first-year "Socratic method" which seems largely to be a thing of the past anyway; I'm talking about smaller classes and electives where students are truly engaged in the subject matter. Podcasting in this context seems to be a step back, to the "sage on the stage" model of teaching. I think podcasting has great value, but I'm not sure that classroom instruction is its best use...."

Emphasis mine.

The first and most important point to be made is that CALI does not have a model of podcasting. It's the faculty who use Classcaster that decide how to incorporate the podcasting into their classroom. We provide the service and give faculty a forum for sharing ideas on what works and what doesn't.

Some faculty chose to merely record the classroom. This was very well received by some students in the class for the following reasons...

• Can re-listen to the lecture
• Can review specific parts of the lecture when going over their notes
• Don't get left behind when necessarily missing a class

Recording lectures is not innovative, but the convenient and effortless ability to do so and distribute it to students anywhere in the world is.Using the web as a simple medium of transport is one of its most basic innovations.

Some faculty decided to record weekly summaries where they re-emphasized important points, clarified points that seemed to generate confusion in the classroom or used the opportunity to expand on explanations when the class time ran out. None of this is particularly innovative, but it does add value to the course (at least the students say so in their survey answers) and the ease of which this is done makes it innovative.

There is another critical innovation in podcasting that Jim does not mention, but I know he is aware of from conversations I have had with him.

Podcasting makes you are a better teacher. It forces you to gather your thoughts and present them in an orderly fashion. More than a few faculty have told me that they listen to their own podcasts as a way to improve their lecturing. This is a form of deliberative practice. You get better doing something by doing it over and over and by reflecting on how you did it and podcasting is the method by which this happens.

Several faculty have also told me that they listen to other faculty's podcasts as a way to get tips and ideas for better presenting material in the classroom. This is teachers teaching teachers. There are rare, few opportunities for law faculty to observe other law faculty in action without the social overhead of visiting another's classroom.

If there is a CALI model for legal education course podcasting, it is to create an ecosystem that allows for seemless sharing of excellent teaching practices, deliiberate practice and for students to benefit from all of this.

Scott Leslie, an educational technology researcher and emerging technology analyst has posted an excellent and insightful screencast of a talk he gave to the WCET conference last week.

He lays out in one place (and in a playful manner using a "magic eight ball") many of the issues and prognostications that I have heard seperately from Stepehen Downes, Michael Feldstein, Marc Prensky and many others.

Professor Stephen Safranek of Ave Maria School of Law created podcasts for all of his classroom lectures while teaching Contracts in the Spring 2006 semester and is doing the same this fall. I interviewed Professor Safranek (twice) and must thank him for his patience and equanamity as a technical glitch lost the first interview (Doh!).

Here is the podcast (11:34)- click to listen or right click to download. - SteveSafranekfinal.mp3