Survey of Intellectual Property final examination fall 1994
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
[8 short 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, e.g., "yes" or "no," be sure to explain, but briefly!
Facts
Almost three months ago, Susie Hacker began selling furry holders for computer "mice." The holders look like cartoon versions of real mice and are designed for limited desk space. When a mouse is put inside (upside-down), the user need only move the ball -- not the whole apparatus. Being adjustable, they can be used with any manufacturer's computer mice. Also, after a great deal of tinkering, Susie figured out how to provide for easy mouse clicking -- even though mice buttons are on one side and balls on the other.
After asking for suggestions, Susie decided to call her product "the Mortimer cyberMouseTrap" -- "cyber" suggests computers, and "Mortimer" was inspired by Morty, a Mickey Mouse nephew (her device has a vague family resemblance). Her cMTs, as they quickly came to be called, have become faddish and are being sold by three other firms.
Apex was already selling a "mouse trap," but it attaches to computers, and the mouse can't be used when it's inside. Apex now sells another product that is virtually identical to hers, and the instructions closely mimic hers.
Beta, an established manufacturer of replacement mice, now also sells cMTs with "mice" inside. The included mice have the clicking button on the same side as the ball.
Chi, a new company, sells cMTs with a mouse-clicking arrangement that cleverly improves on hers. Chi's cMT, in fact, inspired her to devise an even better mouse-clicking scheme that she has not yet used. Also, Chi's product label says "patent pending," and Susie wonders what that means.
Susie knows that you attend Franklin Pierce and has asked for free advice. Being flattered, you (perhaps too quickly) agreed to help out.
Questions
1. [10 pts.] (5 pts.) What, if anything, would Susie have to do to bring a copyright action against Apex for copying her instructions? What remedies will be available? (5 pts.) What is the best defense for Apex?
2. [5 pts.] If copyright could be used to prevent other firms from copying some aspect of the appearance of Susie's product, explain whether that alone would preclude her from getting design patent protection.
3. [10 pts.] (5 pts.) If patents or copyrights are not available to keep competitors from closely imitating Susie's cMTs, what is most apt to interfere with state or other federal protection of their appearance as trade dress? (5 pts.) If she obtained a design patent, how, if at all, might that alter her trade dress options?
4. [5 pts.] What is the most pressing thing for Susie to consider if she wants to pursue U.S patent protection for her mouse-clicking scheme(s)? In what way are foreign options now limited?
5. [10 pts.] If Chi, in fact, has a utility patent application pending on its mouse-clicking scheme, how might that affect her rights vis-à-vis its rights if that patent issues and two others issue to her: one on the original and another on her modified scheme?
6. [10 pts.] (5 pts.) How, if at all, could Disney prevent Susie from calling her cMTs Mortimer? (5 pts.) On what basis, if any, could Disney insist that she change their appearance?
7. [5 pts.] To the extent that competitors can legally copy them, will Susie be able to prevent other firms from calling their copies "cMTs"?
8. [5 pts.] Of what value, if any, would trade secret protection be to Susie?
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. Please give these sheets to the proctor -- with your exam number as provided at the top of each page.
1. Unlike the situation with trademarks, and like the situation with patents, state law no longer governs copyright in works that have been fixed.
2. Unlike patents, valid copyrights require only that proper subject matter be fixed and subjectively novel.
3. The word, "science," in the patent and copyright clause of the Constitution refers to human endeavors that Congress has the power to promote through the copyright law.
4. 35 U.S.C. § 271(c) was very important to the outcome of the Betamax case.
5. The Supreme Court has held that the "limited times" qualification in Art. I, § 8, cl. 8 applies to both state and federal governments.
6. If the potential fruits of capital intensive research cannot be kept secret or protected by copyright or patent, such research would probably have to be funded with public money.
7. A co-owner's use of intellectual property infringes non-consenting co-owners' rights.
8. Speech protection under the 1st Amendment may limit intellectual property rights.
9. Copyright may help protect ideas that outsiders submit to companies.
10. Subjective faith in the strength of patents is probably a more important determinant of the amount of capital risked in innovation than objective indicators.
11. The concurrence in Funk relied on considerations now reflected in 35 U.S.C. § 112.
12. A patentee may not overcome an obviousness challenge by showing an unexpected result undisclosed in the specification.
13. No court has so far indicated whether what qualifies as copyright "fair use" is influenced by failing to credit the source.
14. Failure to include proper notice on published works can void any copyright.
15. Failure to promptly deposit published copies usually results in loss of U.S. copyright.
16. One of the best remedies for copyright infringement is treble damages.
17. Independent inventors will soon be able to file inexpensive provisional patent applications.
18. The stronger a service or trademark is, the easier it is for its owner to stop others from using similar marks in ways that do not directly compete.
19. Even by filing bona-fide-intent-to-use applications, U.S. citizens may not federally register marks without ever using them.
20. Trade secrets are generally governed by federal law.
21. States may forbid limited reverse engineering of narrow classes of products.
22. Firms can always obtain injunctions against intentionally disparaging statements.
23. Firms can usually obtain injunctions against competitors' unintentionally false advertising.
24. Whether the FTC will take action against a firm's false advertising may well turn, at least in part, on the number and size of the firm's competitors.
25. Tort law imposes a general duty to avoid causing others foreseeable economic harm.
