There are two kinds of questions, essay and true/false. Write your answers to the essay questions in blue books, but please use only one side of the page and observe margins. Please put your true/false answers on the sheets with the questions (in the space provided) and give those pages to the proctor.

Please take plenty of time to read the questions and facts carefully. Answering an unasked question is, at best a waste of precious time -- as is answering it without taking note of a critical fact. Relative question weights are given; you should apportion your time accordingly and resist spending too much time on any particular question.

Ersatz, of course, has filed a patent application on the AI routines, an application for federal registration of the name "Intellectual Property Expert" and copyright registration for that program.

About six months after the sale to FPLC, Ersatz learned that a similar product had been introduced for Macintosh computers by Anonymous Software under the name, "Intellectual Property Hyper-Expert" Without any further investigation, Ersatz filed a trademark infringement suit in federal court asking for a preliminary injunction.

1. [15 pts.] Assuming that the Ersatz trademark has not yet been registered, does it have any basis for being in federal court? On the merits, what must Ersatz show in order to prevail? What is the likelihood of success, given the most obvious defenses available to Anonymous?

2. [10 pts.] With regard to the copyright complaint against Anonymous and its owners, what would be the effect, if any, if Ersatz could show that the questions in the Anonymous program, while dissimilar in phrasing, were basically the same as those asked in its program? What would be the effect, if any, that no one directly associated with Anonymous could even use an IBM computer, much less figure out how to reverse engineer IBM software?

3. [10 pts.] With regard to the copyright complaint against FPLC, what defense(s) is/are available to FPLC? How effective is/are such defense(s) likely to be?

4. [15 pts.] While all of this is going on, Ersatz learns (by being served with a complaint) that a two year old patent application, with claims more than covering its AI routines, has just issued to Imitation. What are the major defenses available to Ersatz in this suit? What is the effect, if any, that Ersatz developed its AI routines independently and at great expense?

5. [10 pts.] Both Anonymous and Ersatz have received copies of a complaint filed by a patent attorney in federal court in Hawaii. She claims that both firms are engaged in the unauthorized practice of law and that the names of their respective programs deceive consumers. In addition to other relief, she seeks an injunction forbidding the use of words such as "intellectual property expert" on the grounds that these programs do not do what they claim to do. With regard to the latter, what is her most obvious cause of action, and what does she need to show in order to prevail?

Answer any (but only) 20 of the following 25 questions by writing "true" or "false" in the blank provided on the left -- I will count only the first 20. [Please turn in these sheets with your exam -- and put your exam number in the space provided at the top of each page.]

1. Inventors who are interested in patents only as market protection would be wise to start exploiting their invention and wait at least a year to find out how good a "lock" they need "for the door."

2. A small business which doesn't plan to expand out of one state should nevertheless search federal registrations before adopting a trademark.

3. It is now possible for a U.S. citizen to obtain federal registration of a trademark without ever having used it.

4. It is proper for state law to forbid certains methods of reverse engineering certain kinds of products.

5. Product disparagement is actionable under §43(a) of the Lanham Act.

6. Importing an unpatented product made abroad by a patented process will infringe a U.S. process patent.

7. One who induces another to breach a contract is usually liable in tort.

8. An inability to tell others how to practice an invention will mean that the invention is unpatentable under 35 U.S.C. § 103.

9. For copyright purposes one court has held that a "useful" product is copyrightable if its sole utility is in its appearance or the information it conveys.

10. Regardless of whether an invention is made in the course of employment, the inventor(s) must be ascertained, and the patent application must be filed in the name(s) of said inventor(s).

11. Federal trademark registrations must be renewed every 10 years.

12. The "right of publicity," to the extent that it is recognized, is uniformly inheritable via will or intestate succession.

13. U.S. citizens no longer need to provide copyright notice on published works in order to be protected.

14. It is no longer necessary for U.S. citizens to seek copyright registration for works prior to bringing copyright infringement actions.

15. There is no longer any incentive to seek copyright registration for works originating abroad.

16. Television networks have the power to reject ads that they find to be tasteless or otherwise objectionable -- irrespective of whether, e.g., claims may be true or false.

17. At least onc court has said that what might otherwise qualify as "fair use" may not qualify in the absence of properly crediting the source.

18. A trademark owner is unlikely to prevail against the publisher of a literary work that makes fun of the mark.

19. The stronger a service or trademark, the easier it is for an owner to stop others from using similar marks in ways which do not directly compete.

20. Recovery in tort for intentional interference with commercial expectancies is difficult to obtain from overly aggressive competitors.

21. The word,"science," in the patent and copyright clause of the Constitution refers to human endeavors which Congress has the power to promote through the patent law.

22. Companies which fail to have employed inventors sign, e.g., confidentiality agreements, have alternative bases for preventing them from taking trade secrets to competitors.

23. Outsiders who sue to recover for the uncompensated use of unsolicited ideas which they have submitted usually get the benefit of an implied agreement of confidentiality.

24. Consumers are generally regarded as having standing under §43(a) of the Lanham Act.

25. Once a term has become generic, it is forever lost as a possible trademark.