Ledger Vol. 1 – No. 2

Student-Athletes and the NCAA: Playing by the Rules

By Steven Olenick* A pdf version of this article may be downloaded here. Prized basketball recruit Renaldo Sidney has yet to step foot on the court for the Mississippi State Bulldogs.   His eligibility status remains uncertain due to an ongoing investigation by the National Collegiate Athletic Association (NCAA) into his amateurism status regarding receiving improper benefits.[FN1]Oklahoma State star wide receiver, Dez Bryant, was ruled ineligible by the NCAA this past season for lying about a meeting with NFL great Deion Sanders.[FN2] Major League Baseball prospect Andrew Oliver was suspended by Oklahoma State University because he had violated Bylaw 12.3.1 by allowing his former attorney to contact a Major League club and by having his former attorney present when a Major League Baseball club tendered him a contract.[FN3] Recently, another Major League Baseball prospect, James Paxton, had his eligibility questioned for his dealings with a Major League Baseball club.[FN4] More →

Contributory Liability for Trademark Counterfeiting in an Ecommerce World

By Scott Gelin and G Roxanne Elings* A pdf version of this article may be downloaded here. It has never been easier for sellers of counterfeit goods to avoid getting caught. The Internet is particularly well suited for anonymity, and counterfeiters readily take advantage of the Internet’s cloaking abilities. Counterfeiters are able to register domain names, operate web stores that sell counterfeit goods and/or sell counterfeit goods on third party auction platforms, accept and process credit card payments, and ship these illicit goods directly to customers, all without revealing their true identities to consumers, who often think they are buying the real thing, or to brand owners who might try to stop them. But if brand owners cannot catch the actual counterfeiters and make them pay, why not pursue the selling platforms, credit card processors, shippers, and Internet service providers who make these counterfeit sales possible? After all, these entities garner fees when counterfeiters use their services to sell and distribute fake goods. Also, these service providers may know the counterfeiters’ true identities and be in the best position to make them stop. Another advantage for brand owners to focus on service providers rather than the counterfeiters themselves is that the former are generally easier to locate and often have deeper pockets. More →

Using Clean Hands to Justify Unclean Hands: How the Emergency Exception Provision of the SCA Misapplies an Already Controversial Doctrine

By Brendan J. Coffman* A pdf version of this article may be downloaded here. INTRODUCTION A man sits in his apartment in a major United States city checking his email. He may or may not be a U.S. citizen, and may or may not be associated with a significant international organization. The government’s intelligence agencies are not aware of the man, and local police officials have no overt reason to suspect anything abnormal or threatening. His email is transmitted and stored by a major electronic communications service provider, and his private messages on the server contain information vital to his plot—to attack a major U.S. city. In the adjacent apartment, a man sends an email to a friend discussing his desire—mostly imaginary, but frighteningly realistic—of assaulting his female neighbor. The friend’s wife intercepts the email. The wife does not believe the man would follow through on his desires, and goads him on in response. Much like the case above, the police have no reason to suspect any dangerous intention from this man. More →

Software Developers, On Guard!: Offering Software for Sale Can Trigger a Bar to Patentability Even If the Software Is Untested and Incomplete

By Paul A. Ragusa and Jack Chen* A pdf version of this article may be downloaded here. In Pfaff v. Wells Elecs., Inc.[FN1] the Supreme Court formulated the now well known test for determining when an invention cannot be patented due to a sale or offer for sale more than one year prior to the filing of a patent application. Specifically, the Court held that an invention need not be “reduced to practice” at the time of the sale or offer to create a statutory bar against patent protection. [FN2] Instead, a sale or offer of an invention “ready for patenting,” is sufficient to raise a statutory bar. [FN3] The purpose of the on-sale bar is to encourage early disclosure of inventions to the public as well as to prevent a de facto patent term extension by those who would commercially exploit an invention for an extended period of time prior to filing a patent. During the past twelve years, the courts have applied the Pfaff test to various technologies, some with more clarity than others. One thorny area involves the application of the Pfaff test in the context of software related inventions. Although the Pfaff Court rejected precedent that an invention needed to be “substantially complete” to provide a statutory bar, [FN4] it did not address how a software related invention can be ready for patenting where the code is incomplete, and untested. As a practical matter, how is a court to determine whether an unfinished software-related invention is ready for patenting and therefore can operate to trigger an on-sale bar? A recent district court decision addresses this issue head-on and is discussed below. More →