As you'll probably have seen elsewhere, the Blackboard patent is being re-examined, the prior art raising serious concerns (never!). While this has generally met as a welcome development (it would be more worrying if it wasn't being reexamined), a cynical part of me thinks that it may not be the victory it seems. These reexaminations can take two years, during which time the patent hangs in limbo. Perhaps this was BB's intention all the time - it isn't about actually getting the patent, it is a means of undermining competitors while making yourself look dominant. If you were an institution choosing a VLE now, the threat of the patent might make you decide against another commercial system such as Desire2Learn, and make you think that BB was the only way to go, whether you liked it or not. The panopticon works as a control method because you could be monitored, not because you are being watched all the time. In the same way the patent works because it could put others out of business, not because it will. And the longer that uncertainty reigns, the better.
It might also make you nervous about going down the open source route (despite those reassurances from BB), but I think this is where the patent has backfired. It has inadvertently raised both the profile and the imperative for open source solutions, and thus made the commercial option seem more precarious.