I’m not sure I’ve fully thought this through, and it comes with all the usual caveats about legal ignorance, but here goes….
Could, ironically, WebCT be used as a defence against the Blackboard patent? When Blackboard acquired (or merged with) WebCT they gained a lot of WebCT staff. When they were different companies, their products didn’t differ much, and if WebCT was still a separate entity it would be as subject to a law suit as Desire2Learn. So, if I were the Desire2Learn lawyers I would be asking some of the WebCT staff who moved over to Blackboard to testify. For instance, Chris Vento the chief technical officer at WebCT and now Blackboard, is a very smart guy – could he realistically get up and say that when he worked at WebCT they were (knowingly or otherwise) copying Blackboard and not working from more general principles and meeting the demands of their customers? I think this would surely highlight the case for excessive generality in their patent.