Survey of Intellectual Property final examination fall 1992
General Instructions
This is a three-hour, open-book examination. You may consult any written materials, but your exam must be your own work. Do not discuss it with others. There are two kinds of questions, essay and true/false. Relative question weights are given; do not spend too much time on a particular question.
Be sure to put your exam number on each item you give to the proctor.
Part I
[10 essay questions; 60 points total]
Please answer in bluebooks, using only one side of a page and observing margins. Take plenty of time to read the facts and questions carefully. Answering unasked questions is at best a waste of time -- as is answering without noting critical facts. Where a question could be answered "yes" or "no," be sure to explain briefly!
Basic Facts
In 1989, Joe Keeble founded Keeble Enterprises (hereafter KE) and has since done well in industrial robotics.
In early 1992, KE developed a small, multipurpose robot that vaguely resembles a person. These robots can be programmed to perform different tasks or to relocate themselves between tasks. While they are not as quick as fixed, single-purpose robots, e.g., designed to put lug bolts on auto wheels, KE was sure that the mobility and flexibility of its new robots would offset any speed disadvantage.
Before the new robot was offered for sale, KE held a company-wide contest to find it a name. The contest announcement said:
KE employees, name our new robot and win 50 BUCKS!Put your suggestions in the box below.
The winner will be announced next week.
All decisions of judges are final!
Elwyn Figbert, an 18-year-old, part-time member of the secretarial pool, won with the name "Elf." Elwyn learned that he won during a company-wide employee meeting. He was called to the platform, where he got his check and a handshake from Joe Keeble. When he endorsed the check, he noticed the following on the back: "I accept this sum in full payment for KE's use of the name I submitted for its new robot."
Later, some of KE's new robots were given an elf-like appearance by dressing them in childrens' Halloween costumes -- the character is "Happy" (from Disney's Snow White). "Happy" Elf(TM) robots are popular with wealthy families having small children, and many are used by one of the fast food chains. They also sell much better than ones that look more like industrial robots.
1. [5 pts.] Elwyn now feels cheated because the company is making so much money and he got so little for his great name. He has found an attorney who believes that KE took his idea without just compensation. How much help would Elwyn get from first case we discussed?
2. [5 pts.] Elwyn's attorney plans to sue KE for trademark infringement. Is this likely to work?
3. [5 pts.] If either Elwyn or KE applied to register "Elf" federally, would misdescriptiveness pose a serious problem?
4. [10 pts.] (a) If "Elf" is published for opposition, would Keebler (whose cookies are made by elves) be likely to prevent registration? (b) If Keebler succeeds, what would it gain?
5. [10 pts.] (a) If KE buys only Disney-licensed masks and costumes for its elves, what is KE's best defense against possible copyright infringement? (b) Why would Mirage Editions be of little assistance to Disney?
6. [5 pts.] If Disney is offended by the prominent use of "Happy" as a fast food "worker," in what way would surveys be useful in preparing for trial against the fast food chain?
Additional Facts
KE originally purchased "Elf" parts from Apex Manufacturing (AM). However, after Positron Mechanicals (PM) threatened suit because an Elf component allegedly infringed one of its U.S. patents, KE started buying its supplies from PM. Later, AM established non-infringement through a declaratory judgment action. Recently, AM has successfully sued both KE and PM for infringing one of its U.S. patents covering the same Elf component.
7. [4 pts.] Briefly describe two ways that both PM and AM could have valid patents on the same component.
8. [6 pts.] On what basis, if any, could AM recover from PM for taking, through its unsubstantiated infringement allegations, KE as a customer?
9. [5 pts.] On what basis, if any, could KE recover from PM for, e.g., loss of inventory that infringes AM's patent?
10. [5 pts.] On what basis, if any, could AM recover from the fast food company that features "Happy" elves?
Part II
[20 true/false questions; 40 points total]
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. Again, please give these sheets to the proctor -- with your exam number in the space provided at the top of each page.
1. The 11th Amendment to the Constitution no longer hinders owners of patents, trademarks or copyrights from seeking damages against state governments that infringe their rights.
2. A copyright suit can never be brought prior to registration.
3. Patentees can be estopped by "file wrappers" in at least two distinct ways.
4. One of the best remedies for patent infringement is minimum statutory damages.
5. Trade secrets are generally governed by state law.
6. 17 U.S.C. § 301 allows a small state role in copyright disputes.
7. Inventors should test their market for a couple of years before seeking patents.
8. Although buildings are covered by copyright, it is still unlikely that disputes between architects and their clients will be resolved mostly by copyright law.
9. Plant patents are not available for things like potatoes and flowers grown from bulbs.
10. 35 U.S.C. § 271(c) was very important to the outcome of the Betamax case.
11. Rights of publicity must be limited in time to avoid being unconstitutional.
12. In spite of tickets to concerts and ball games sometimes being called "seats," the CAFC held that "Seats" was proper as a mark for a ticket seller.
13. The Constitution prevents courts from issuing unlimited-in-time injunctions against use of improperly acquired trade secrets.
14. When in doubt as to consumer perceptions of the meaning of potential marks, trademark examiners often commission surveys.
15. After Löwenbraü ceased to be imported, the FTC refused to take action regarding whether dropping references to its importation was enough to prevent consumer deception.
16. Those who create "works for hire" have a statutory interest that reverts after approximately 35 years.
17. It is still useful to put copyright notice on published works.
18. The concurrence in Funk relied on considerations now reflected in 35 U.S.C. § 112.
19. One of the best remedies for copyright infringement is treble damages.
20. The doctrine of equivalents appears to be inconsistent with a patent reissue provision.
21. All means of acquiring a trade secret other than licensing, independent creation or reverse engineering are clearly forbidden.
22. The Supreme Court recently reaffirmed that states may not forbid slavish imitation of functional aspects of products.
23. The word, "science," in the patent and copyright clause of the Constitution refers to endeavors that Congress has the power to promote through the copyright law.
24. Outside submitters who register copyright in their ideas are much better off than ones who fail to do so.
25. A classic commercial tort case found the owner of a pond to have a cause of action against another's scaring wild fowl away from it.
