Instructions
2. Alfred (Q.1) says that his friend Dave made a similar widget earlier, but it didn't work well. Alfred's fairly small variation in design offers unexpected gains. This is most relevant to:
A. § 101.
B. § 102.
C. § 103. [Adams]
D. § 112.
3. Alfred (Q. 1) also says that his widget must be made of a particular
material. Because he invested a lot of effort in identifying that material, he wants to disclose as little information about it as possible. His goal is most likely to cause a problem under:
A. § 101.
B. § 102.
C. § 103.
D. § 112. [Flick-Reedy]
4. In the two months it has been tested, Dexter's IQ test has received rave reviews and is likely to become the new standard. He wants to patent it. His most serious hurdle is apt to be posed by:
A. § 101. [subject matter]
B. § 102.
C. § 103.
D. § 112.
5. Apex patented a process for using an otherwise useless chemical. Beta sells the chemical but does not use the process. On these preliminary facts:
A. Alpha can forget about Beta's infringing its patent in any way. [Dawson]
B. Beta's customers cannot infringe because of the "exhaustion of the right" doctrine. [red herring]
C. Beta could be liable to Alpha under § 271(c). [Dawson]
D. Alpha would be worse off if it had valid claims covering only the chemical. [wrong!!]
6. Gamma sells its patented gadgets in the East and licenses Delta to sell them only in the West. Everett bought gadgets from Delta in the West. Everett's liability for selling in the East:
A. could probably be avoided under the exhaustion of the right doctrine. [Keeler]
B. is very likely under § 271(c). [red herring]
C. depends on whether he knew of the territorial restriction in Delta's license. [Keeler]
D. is probable under § 271(f). [red herring]
7. Morton makes parts of Alpha's patented widgets at separate locations in the U.S. It then ships them to Canada for final assembly and use. Everett's liability to Alpha:
A. could be established under the exhaustion of the right doctrine. [red herring]
B. is possible under § 271(a). [offer to sell in the U.S. as discussed in a Blank lecture]
C. is probable in light of the holding in Deepsouth. [reversed by statute!]
D. all of the above.
8. Fregeau's claims cover a process of storing beverages in specified containers from 1 to 2 weeks to improve their taste. Grophus sells beverages stored in very similar containers for 15 days. Grophus is most apt to infringe if:
A. Fregeau's two week limitation was added to avoid an obviousness rejection. [estoppel]
B. Fregeau's specification says that flavor quickly degrades after 10 days. [estoppel]
C. Fregeau did not find that flavor improvements offset storage costs after 13 days. [a gratuitous limitation related to cost is least likely to interfere w/ liability]
D. Grophus' beverages taste twice as good as Fregeau's. [ergo, unlikely to be equivalent]
2. Jones copied Nicko's watches. In an action for infringing its cartoon watch faces, Nicko's rights will be most affected by whether: [see Mazer]
A. it has sold its watch faces separately.
B. watches are useful.
C. its watches have design patents.
D. Jones' watch faces are substantially similar to Nicko's. [copyright infringement standard]
3. Able admits that he referred to Baker's mousetrap book in writing his own. The most likely basis for Able's being found to infringe is that the book:
A. has a very similar organization. [102(b); under Whelan, there's a remote possibility of liability on this basis, but C is definitely the better answer.]
B. presents methods for building better mousetraps derived entirely from Baker.[102(b)]
C. has an illustration very similar to one of Baker's. [no dispute about whether illustrations are copyrightable]
D. presents historical data collected entirely by Baker. [Hoehling]
4. Illusions, Inc. designs and sell expensive wallpaper. Grommer sells works that consist in whole or part of remnants of Illusions' wallpaper that he bought at a local shop. Grommer's potential liability could be affected by whether:
A. wallpaper is "useful". [Mazer; by itself this factor is not compelling, but both of the following are clearly correct.]
B. he can rely on the first sale doctrine. [Mirage]
C. his works are construed as derivatives. [Mirage]
D. all of the above.
5. Jones is the author of a widely used casebook. Smith later published a competing casebook; over 20% of the text in Smith's book is almost identical to that in Jones's book. The size of Smith's potential liability, if any, would be most affected by:
A. whether Smith's book contains any mention of Jones. [could affect liability but less likely to affect its size than when registration occurred.]
B. when Jones registered his copyright. [§ 412]
C. whether Jones' book contains a copyright notice. [red herring]
D. Jones being able to prove that Smith had access. [facts]
6. A new song and tape were commissioned for Governor's re-election campaign. Governor features the music in her campaign ads. Challenger plays a few bars of Governor's tape in ads making fun of Governor. Challenger's liability is most apt to turn on: [see Keep Thompson... class discussion]
A. the fact that political debate is not referred to in § 107.
B. whether Governor's song and tape were done as works for hire. [red herring]
C. whether she used no more than needed to remind listeners of Governor's ads. [also Pretty Woman]
D. the fact that she is trying to take Governor's job.
7. Joe completed his manuscript in June; it was published in November and registered in December. Sally published unauthorized copies in August. Sally is not subject to: [§ 412 -- right out of the in class problem]
A. an injunction.
B. liability for costs.
C. actual damages or profits.
D. liability for statutory damages or attorney's fees.
8. John, a musically illiterate song writer, refuses to allow his songs to be recorded. Sam surreptitiously taped one of John's concerts. John has rights under state law until: [This is a take-off on the Alaskan village discussion.]
A. his songs are published by someone with authority. [key act is fixing, not publication § 301]
B. 50 years after his death. [red herring]
C. his songs are fixed by someone with authority. [§ 301 & Goldstein -- in class problem]
D. 75 years from the date Sam made the tape. [red herring]
2. Twit, an IP attorney, recently adopted <www.FPLC.org> as his web address. At his site, viewers can see intellectual property materials posted by Franklin Pierce Law Center, but these appear in such a way as to make one think they are posted by Twit. To force Twit to drop FPLC from his address, the Law Center must establish that:
A. people have actually been confused about Twit's affiliation. [unnecessary]
B. Twit uses the term "Franklin Pierce Law Center" somewhere on his site. [unnecessary]
C. people are likely to believe that Twit is affiliated with the Law Center.
D. FPLC is a registered trademark. [unnecessary]
3. Assume that FPLC somehow prevails against Twit (Q. 2). In a rage, Twit then opens a <lawschools.org> site with information about various law schools' specialty programs. He represents that they are based on scientific polls, but his rankings are mostly lifted from U.S. News. However, FPLC ranks tenth for IP. An action least apt to be dismissed will seek to:
A. recover actual damages for disparagement under 15 U.S.C. § 1125(a). [only damage actions are likely for what appears to be non-commercial speech]
B. enjoin false advertising under 15 U.S.C. § 1125(a).
C enjoin dilution of its fine name under 15 U.S.C. § 1125(c).
D. All listed actions are sure to be dismissed if Twit's speech is non-commercial.
4. Rowdy hauls "sludge" from Maine sanitation plants to disposal sites. Following a flash of inspiration, all his trucks now bear the following in large letters:
5. Viewers at the Total News' website can get news from various sources by selecting, e.g., N.Y. Times. What viewers then see is a source's news and ads within a frame created by Total -- accompanied by ads for which only Total is paid. Total's liability is most apt to turn on:
A. its clear misrepresentions of the source and sponsorship of presented content. [no evidence, facts]
B. whether sources can register copyrights before any infringement occurs. [Pacific & Southern]
C. whether pages created by Total constitute derivatives of the sources' works. [Mirage]
D. its inducing breaches of contracts between sources and their advertisers. [no evidence, facts]
6. In 1995, Fyne China put uniquely scalloped edging on one of its
dinner ware lines. Sales were above average. So Fyne plans to use this edging on all its products. Considering that: [see Sears; Compco]
A. Fyne should patent its scalloped design. [estoppel, Singer -- as well as Sears; Compco]
B. Fyne should register the scalloped edging as a trademark.
C. Fyne should register its copyright in the scalloped design. ["useful" work, not possible]
D. All of the above.
7. Five years ago, the mark Adox was federally registered. Its owner now:
A. needs to file § 8 and § 15 affidavits. [class notes]
B. has an incontestable mark. [not without § 15 affidavit]
C. needs to file a renewal application. [red herring]
D. has stronger rights under § 2(f). [red herring]
8. Suzie patented an "apparatus for converting computer mice into trackballs". She called it a cyberMouseTrap, but consumers called it a cMT. So she adopted cMT as her trademark. Competitors selling similar things that don't work as well also call them cMTs. The scope of potential relief against competitors will be:
A. related to whether consumers associate cMT with a known manufacturer. [Richey lecture]
B. if cMT is found to be generic, zero. [EAL]
C. if cMT is found to be generic, small but important. [EAL]
D. unrelated to Suzie's use of cMT as a noun. [Richey lecture]
9. Aaron registered Rodo in New Hampshire in 1985. He now sells dolls, teddy bears and the like in NH and VT. Betz, a taxidermist headquartered in California, adopted Rodo in 1990 and registered it federally in 1992. He now uses or licenses Rodo in 30 states, including NH. Jon recently took a Rodo teddy bear to a Betz shop. Throwing it on the counter, he said "You should stuff only these and leave real bears alone!" Litigation followed. On these facts:
A. given Jon's confusion, Betz can stop Aaron from using Rodo. [Aaron has c/l rights]
B. Betz can clearly limit Aaron to the area occupied before 1992.[confusion doesn't seem that likely]
C. Aaron can clearly exclude Betz from operating anywhere in NH. [Burger King]
D. Aaron might be able to exclude Betz from any area Aaron occupied in 1991.[confusion is at least possible]
10. After being sued (Q. 9), Aaron finally sought federal registration.
Litigation was terminated when Aaron and Betz each agreed not to expand outside of their respective product and service markets without the other's approval. The district court then certified related decrees and orders to the PTO, resulting in Aaron's mark being registered. Now:
A. Betz could probably stop a third party from selling Rodo bear skin rugs. [products/sevices are practically if not actually identical]
B. Aaron and Betz could together stop a third party from selling Rodo bread. [definitely false -- Sunkist discussion]
C. Aaron could successfully oppose a third party's registration of Ropo for jump ropes. [both product and mark are different]
D. All of the above. [see B]
Matching. Please enter letters corresponding to the best definitions for numbered terms on the answer sheet. [Related terms are grouped. No definition is used more than once.] [Best match in brackets.]
[G] 1. Staple [N] 13. Accounting for profits [L] 2. Experimental use [A] 14. Statutory damages [F] 3. Fair use [S] 15. Right to use [J] 4. Infringement search [H] 16. Right to exclude [D] 5. Intent to palm off [M] 17. Mousetrap Myth [W] 6. Intent to compete [I] 18. Monopoly [T] 7. Copying [R] 19. Court of Claims [B] 8. Consumer surveys [K] 20. Court of Appeals for the Federal Circuit [O] 9. Publishing [V] 21. Court of Customs and Patent Appeals [Q] 10. Restatement (3d) Unfair Competition [U] 22. Interstate commerce [E] 11. Induced infringement [X] 23. Science [P] 12. Damages [C] 24. ArtsA. Remedy often important in copyright, but never in trade secret, actions. -- a gift?