Survey of Intellectual Property Final Examination Fall 1995
General Instructions
This is a three-hour, open-book examination, but you may consult only your course materials and notes. Do not discuss your exam 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 Insulan, Inc. (Insulan), a company based in the Barbados, manufactures and sells Reliable(TM) blood glucose meters for home use by persons with diabetes. To use the meter, one applies a drop of blood onto a special test strip and places the strip in the meter. The meter then "reads" the strip and determines the patient's blood glucose level.
Insulan markets and sells both the meters and the strips. Insulan has two U. S. patents granted in 1991. The claims of both cover only methods of using blood glucose meters.
Insulan first introduced its meters in 1987. The packaging on Insulan's meters until 1992 contained no reference to either patent. In October 1992, Insulan began marking the patent numbers on both its meters and strips. In April 1993, Insulan also began placing a sticker on the outside of its meter boxes that stated in part:
Contents covered by one or more of the following U.S. patents: 4,888,888; 5,888,888 and Des. 888,888. CAUTION: Purchase of this device does not give a license to practice those patents. Such a license is automatically granted when the device is used with the enclosed or separately purchased RELIABLE test strips. No other test strip supplier is authorized to grant such a license.In June 1993, Cramden, a U.S. firm, began selling Fast Checker test strips. Its ads and labels indicate that its strips are designed for use in Reliable(TM) meters. Its instructions closely track those for the Reliable strips. Insulan immediately filed suit. It also ran ads in the trade literature reproducing the statements on its labels.
Cramden denied liability and filed counterclaims. It also began to add the following to labels on boxes of its strips:
NOTE: Some Insulan Reliable meters sold after about July 1993 caution that the use of any test strip other than Reliable test strips on those meters violates its U.S. Patents. This is wrong! Consumers have the right to use Insulan meters without paying exorbitant prices for test strips.Questions 1. [8 pts.] (4 pts.) Insulan's IP attorney has never before considered copyright but wants to enjoin Cramden from copying its instructions. Can she seek copyright relief immediately? (4 pts.) When action can be brought, what is Cramden's best defense?
2. [12 pts.] (6 pts.) If consumers who follow Cramden's instructions would perform a process covered by one of Insulan's patents, on what basis could Insulan seek relief against Cramden under the patent law? How would such liability differ from that based on making and selling strips having no use other than to practice Insulan's patents? (6 pts.) In what way, if any, would patent relief differ from that potentially available in copyright?
3. [5 pts.] If Insulan did not file patent applications until 1989, how might that have affected the scope of its protection?
4. [5 pts.] What case that we discussed would best support the right of consumers who bought Insulan's glucose meters to practice Insulan's patented processes?
5. [10 pts.] If most of Cramden's customers are scared off because of Insulan's threats about patent infringement, and Cramden is subsequently found not to infringe, on what bases might Cramden recover from Insulan for its losses? What is Insulan's best defense?
6. [5 pts.] Does Cramden infringe Insulan's trademark by referring to Reliable(TM) in its ads and labels?
7. [5 pts.] If Insulan intends to assert trade dress protection for its strips, how way might it be worse off if it first obtains a design patent for those strips?
8. [5 pts.] On what basis might Insulan seek relief for Cramden's calling its prices exorbitant?
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. The patent and copyright clause of the Constitution is the source of Congressional power to regulate trademarks.
2. Trade secret protection often requires substantial expense.
3. Statutes often provide that so-called intellectual property is, in law, property.
4. Your instructor's surname is not "Fields."
5. The acts of the defendants in Deepsouth presently constitute infringement under U.S. patent law.
6. Acts found to infringe in Bolar Pharmaceutical no longer do so.
7. An example of a "mere aggregation" is a pencil and eraser combination.
8. Making a doll in the shape of a cartoon character constitutes copyright infringement.
9. Even though copyright protection arises automatically, it does not protect, e.g., a business scheme as soon its author writes it down.
10. 17 U.S.C. § 301 voids all state law governing copyright.
11. The Constitutional impediment to prior restraints of speech is often an impediment to enjoining copyright infringement.
12. The best way to overcome an obviousness challenge is to show an unexpected result.
13. Even though a term becomes generic, it is not forever lost as a possible mark.
14. Failure to include proper notice on published works can void any copyright.
15. Even after filing bona-fide-intent-to-use applications, U.S. citizens may not federally register marks without ever using them.
16. Trademark registrations must be renewed every 10 years, lest the trademark expire.
17. When in doubt as to, e.g., consumer perceptions of the meaning of words, courts may require the plaintiff to produce survey results.
18. The PTO has historically taken a narrow view of "commerce" for purposes of trademark registration.
19. In Baker v. Selden, by "art" the court meant plaintiff's book keeping "technology."
20. Outsider submitters who sue to recover for the uncompensated use of unsolicited ideas usually get the benefit of an implied agreement of confidentiality.
21. One is free to use another's trade secret if it is obtained in any way other than through breach of confidence.
22. Knowingly inducing another to breach a contract is generally tortious.
23. Trademark dilution statutes generally afford protection going well beyond what trademark law otherwise provides.
24. Since 1908, the FTC has not needed to show competitive harm to enjoin false advertising.
25. For patent or trademark (in contrast with copyright) infringement, plaintiff must show that defendant copied.
