Survey of Intellectual Property final examination fall 1991
General Instructions
This is a three-hour exam; you may consult the book and other materials. Yet, your examination must be your own work; do not discuss it with other students. Put your exam number on each item you turn in (and please do not put your name on any part of the examination).
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 without taking note of a critical fact. Relative question weights are given; you should resist spending too much time on any particular question.
Part I
[8 short questions; 60 points total]
Basic Facts
Ima Whiz owns Apex Office Supplies, Inc. Some time ago, Ima had an idea for a desk lamp with a large, rectangular base. The lamp base has room enough for and is specially adapted to attach a small dictionery and a set of daily calendar sheets. The dictionary contains words and other information (e.g., metric conversion tables) discovered to be of particular value to busy executives. The calendar pages (other than with respect to size and postion of perforations) are similar to others on the market, but the mechanism for attaching them is completely new. Apex sells the lamp in several states under the name "Daylight;" it also sells replacement calendar pages.
1. [5 pts.] What major problem would be faced in seeking a utility patent on the new combination of all elements in the "Daylight" that would not be faced in protecting only its new calendar-attaching mechanism?
2. [10 pts.] If no one else uses the name "Daylight" on a similar product, what, if anything stands in the way of Ima's having trademark protection for the name? What will be accomplished if the name is registered in the PTO?
Additional Facts
Assume that, notwithstanding the problem posed in question 1, Ima manages to get a patent covering the combination of elements, as well as the calendar-attaching mechanism itself. Also, assume that federal trademark registration of "Daylight" has issued to Apex Office Supplies. Shortly thereafter, Ima learns that a competitor has just begun selling a similar lamp without the dictionary under the name "Datelite." The competitor's base is smaller, and the calendar attaches by a different mechanism, but the calendar pages, including perforations, are identical. A copy of a small reference book containing exactly the same information as Apex's book is included in the box. However, the layout and text of the book are very different, and it is not attached to the lamp.
Ima decides to bring suit.
3. [10 pts.] If Ima has not yet attempted copyright registration, what procedural options are available should anything he seeks to register be refused? [Ignore the merits; see below.] If registration is granted, e.g., for the dictionary, what remedies would be available for infringement?
4. [10 pts.] Are copyright in the dictionary or calendar pages affected by being an integral part of a useful object? Aside from that, what are the competitor's best copyright infringement defenses for each item?
5. [5 pts.] Depending on the claims of the patent, how might sale of replacement calendar pages for "Daylight" lamps potentially infringe? How would replacement light bulbs for the lamp differ?
6. [10 pts.] Briefly, validity aside, what are the chances that Ima can establish that the mark "Datelite" infringes the Apex trademark? If Ima fails to establish that sale of replacement calendar pages infringe the patent, can the competitor be prevented from indicating that its replacement calendar pages will fit the "Daylight" device?
Additional Facts
Besides all this, Ima has just learned that the sales manager of the competing firm refuses to deal with distributors and sellers of the Apex light. He also tells them that his product is much cheaper and better -- and that so many consumers will seek the "Datelite" that there will soon be no market for the "Daylight" lamp. Thus, he predicts that their businesses will suffer.
7. [5 pts.] Does Apex have a cause of action for interference with commercial expectancy? In what way, if any, would the situation change if several customers have breached contracts with Apex by cancelling orders?
8. [5 pts.] Regardless of the substantive basis for recovery, what is the difference between relief in the form of an accounting for profits and relief in the form of damages.
Part II
[40 points total]
Specific Instructions
Answer any (but only) 20 of the following 25 questions by writing "true" or "false" in the blank provided on the left. If you answer more, 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. The word, "arts," in the patent and copyright clause of the Constitution refers to human endeavors that Congress has the power to promote through the patent law.
2. Copyrights require considerably less originality than patents.
3. Given the usual rationale for allowing punitive damages, limiting such recovery to a multiple of actual damages makes a great deal of sense.
4. The Supreme Court has held that the "limited times" qualification in Art. I, § 8, cl. 8 applies to both state and federal governments.
5. 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).
6. Regardless of whether a work is created in the course of employment, its author(s) must be identified, and copyright registration must be filed in the name(s) of said author(s).
7. Inventors interested in patents only as market protection should exploit their inventions and wait at least a year to find out how good a "lock" they need "for the door."
8. A patentee may overcome an obviousness challenge by showing an unexpected result -- regardless of whether such a result was known at the time of filing.
9. Plant patents do not protect against reproduction by the use of seeds.
10 Descriptive, misdescriptive or surname marks often show up on the principal register regardless of § 1052(e).
11. Once the term "shuttle" was found to be generic, the first user was denied all relief against the later user.
12. The validity of "Chocolate Fudge" as an unregistered mark for a soft drink turned on whether the term had acquired "secondary" meaning.
13. A term's acquiring "secondary meaning" does not indicate that it has only two meanings.
14. When in doubt as to, e.g., consumer perceptions of the meaning of a term, trademark examiners are unable to commission surveys.
15. Fair use is more effective as a defense against copying unpublished works because copying published works is more likely to cause economic harm to an author.
16. Those who create a "work for hire" generally have an interest in the work that will revert after approximately 28 years.
17. Failure to include proper notice on a published work voids any copyright in it.
18. It is very doubtful that copyright may be used to prevent another from copying data instead of independently compiling it.
19. Failure to promptly deposit requested copies of works with the Copyright Office may result in loss of copyright.
20. Without a breach of confidence, there can be no misappropriation of trade secret.
21. All means of acquiring a trade secret other than licensing, independent creation or reverse engineering are clearly forbidden.
22. It is improper for states to forbid even very limited methods of reverse engineering.
23. When a firm makes false representations about the price or quality of its goods or services, competitors usually have considerable difficulty proving a resulting loss of trade.
24. The First Amendment interferes with enjoining trade libel or disparagement more than with enjoining false advertising.
25. One of the earliest cases addressing interference with commercial expectancy involved scaring crows out of a cornfield.
