Introduction to Intellectual Property
Final Examination
Professor Field --- Spring 2001

Instructions

   This is a three-hour, open-book exam. You may consult any written materials, but do not discuss the exam with others.
   Put your exam number and answers on the sheet provided. Do not answer more questions than indicated.
   In allocating your time, please note that questions in Part I are worth four times as much as those in Part II.

Part I: Multiple choice
[80 points -- 20 questions total]

   Choose the most correct concluding phrase or statement; please be sure to enter its letter in the corresponding numbered space on the answer sheet. In Parts I.A-D, only the first 5 answers will count.

A. Patents
Answer only 5 of 7.


1.  Such protection is not often justified on the ground that patents:
   A.  constitute a reward for disclosure.
   B.  afford an opportunity to recoup investment.
   C.  foster natural rights.
   D.  provide an incentive to compete.

2.  Gyro has invented an "ansible." It is the first device to permit faster-than-lightspeed communication. Gyro will have the most difficulty claiming:
   A.  all ways to use ansibles.
   B.  all ways to make ansibles.
   C.  faster-than-lightspeed communication.
   D.  faster-than-lightspeed communication with ansibles.

3.  Gearloose invented a new screw driver and hammer combination. His device is most likely to be unpatentable because:
   A.  it offers no unexpected results.
   B.  articles of manufacture, as such, are unpatentable.
   C.  machines, as such, are unpatentable.
   D.  it combines pre-existing materials.

4.  In January 1997, Nubster wrote new software to support his business. It helps people share music (MP3) files on the internet. His software is most likely to be refused a patent:
   A.  if MP3-sharing businesses already exist.
   B.  because Nubster didn't invent the MP3 format.
   C.  for failure to satisfy § 102.
   D.  in Europe.

5.  Despite difficulties, Nubster (Q4) got his business going by June. A patent eventually issued on his 1999 application. Infringers could least easily invalidate it by showing that:
   A.  his software can be used to infringe music copyrights.
   B.  those skilled in the art could easily have written the same program.
   C.  Nubster used the software well before seeking a patent.
   D.  Nubster does not disclose information others would need to infringe his patent.

6.  Nubster's patent (Q5) could be most easily invalidated by showing that:
   A.  his software can be used to infringe music copyrights.
   B.  those skilled in the art failed where Nubster succeeded.
   C.  Nubster used the software well before seeking a patent.
   D.  Nubster's specification does not disclose the source of critical supplies.

7.  If the U.S. government allegedly infringes a patent, the owner:
   A.  must prove invalidity.
   B.  may recover reasonable royalties.
   C.  will enjoy a presumption of infringement.
   D.  is short on luck; the federal government is immune from suit.

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B. Copyright
Answer only 5 of 7.


1.  If Congress extended the term of copyright to life plus 100 years:
   A.  that would be unconstitutional under Art. I, § 8, cl. 8.
   B.  that would be unconstitutional under Art. I, § 8, cl. 3.
   C.  most authors would benefit.
   D.  few authors would benefit.

2.  Joe O'Reilly copyrighted a set of rules for a game. It is based on the extra day in leap years. Megaplex appears to have copied and used his rules but didn't pay him. Their best defense is:
   A.  laches.
   B.  merger.
   C.  unclean hands.
   D.  invalidity under § 102(b).

3.  Barbara Dill tried to register an original polka dot fabric pattern. If the Copyright Office refused, her best chance for reversing its decision is that:
   A.  the Office lacks power to refuse registrations.
   B.  the use for such a pattern is irrelevant.
   C.  Dill's pattern is intended for doll clothes.
   D.  Dill's pattern is intended for sheets and curtains.

4.  The Christian News Syndicate (CNS) distributes occasional excerpts from stories that appear in major newspapers. If sued for infringement, CNS's least useful proposition is that it:
   A.  attributes all sources.
   B.  does not interfere with the sales of any newspaper.
   C.  puts its excerpts into its own words.
   D.  is a non-profit organization.

5.  Charlie's Ceramics (CC) hired CraftWeb (CW) to publish an ad. After CC set up its own website, it moved the ad there. CC is not liable to CW for copyright infringement:
   A.  because CraftWeb created the ad as a work for hire.
   B.  if CC's figurines show in the ad, because that would make it a joint work.
   C.  if CC had oral permission to reproduce the ad.
   D.  because ads are useful and, thus, not copyrightable.

6.  Parker's Pottery (PP) hired CW (Q5) to publish an ad. While that ad differs from CC's, a PP figurine resembling one of CC's appears there. CW is least apt to be liable if it can prove that:
   A.  PP's ad is very different from CC's.
   B.  CW never saw CC's figurine.
   C.  PP's figurine is only substantially similar to CC's.
   D.  PP never saw CC's figurine.

7.  Merlin sells custom CDs containing designated tracks copied from CDs supplied by its customers. Merlin may infringe copyright in the original CDs:
   A.  despite customers' rights to make such custom CDs themselves.
   B.  unless no more than one track is taken from any other CD.
   C.  unless the customers have the right to make such CDs.
   D.  only if his CDs have a serious impact on sales of originals.

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C. Trademarks


Answer only 5 of 7.

1.  Skunkwerx (SW) announced in the trade press that it would stop making "Possum" perfumes after Jan. 1, 2000 -- to give full attention to a new line of "Azalea" soaps and candles. On Jan. 2, Vampex sold six cases of Possum No. 5, wholesale; Crudco sold eight bottles of Possum No. 6, retail. "Possum" for perfumes belongs exclusively to:
   A.  Vampex; they sold the larger quantity.
   B.  Crudco; retail transactions trump wholesale.
   C.  Neither Vampex nor Crudco, if it would confuse consumers.
   D.  Neither Vampex nor Crudco, if their sales were not in commerce.

2.  SW (Q1) filed a single application to register its "Azalea" mark, but the PTO Examiner rejected it because (1) soaps and candles are in different classes and (2) the products do not conform to Consumer Product Safety Act (CPSA) labeling requirements.
   A.  Neither rejection has precedent.
   B.  Both rejections have precedent.
   C.  The first rejection, alone, is precedented.
   D.  The second rejection, alone, is precedented.

3.  SW ultimately prevailed at the PTO (Q2). After $23M in sales, SW learned that, since 1994, Myrtle Fleur has sold about $600 worth of "Azalea" potpourri from her roadside shop in Zipsburg, IL. Her guest book consistently shows visitors from the far corners of the globe. Given, e.g., the Sweetarts factors, Fleur's broadest supportable rights cover uses of "azalea" on:
   A.   only potpourri, and only in Zipsburg.
   B.  anything likely to be associated with potpourri, throughout the U.S.
   C.  only potpourri, but throughout the world.
   D.  anything likely to be associated with potpourri, but only in Zipsburg.

4.  Besides its word mark, SW registered an azalea logo. Later, Fleur (Q3) began to sell floral T-shirts. One depicts an azalea; to enjoin its sale under the Lanham Act, SW must establish that:
   A.  Fleur had constructive notice of SW's logo.
   B.  one consumer has noted the similarity between Fleur's azalea and SW's logo.
   C.  consumers will construe Fleur's azalea to indicate that SW is the source.
   D.  Fleur had actual notice of SW's logo.

5.  After FoPo Lamp Co. registered the domain name, <FPLC.com>, the owner of <FPLC.edu> learned that prospective students, inventors seeking free advice and others are sometimes diverted to <FPLC.com>. A Law Center suit based on the Lanham Act isn't likely to succeed:
   A.  if its services are unlikely to be associated with lamps.
   B.  because only commercial parties are "in commerce".
   C.  because it does not operate for profit.
   D.  for all of the above reasons.

6.  For many years, only FPLC has offered an "advanced licensing institute" (ALI). "Advanced Licensing Institute" was registered, but FPLC disclaimed any rights in the words standing alone. In light of that, another "licensing institute" might be most easily prevented from offering:
   A.  the same contents as FPLC's ALI.
   B.  an institute for beginners.
   C.  an institute for advanced practitioners.
   D.  a materially inferior institute for advanced practitioners.

7.  The motto of Woodstock, Inc. is "Revive the 60s!" It sells refurbished vintage Fender guitars, Stiffel pole lamps and the like as "genuine." Firms that object can most likely:
   A.  enjoin use of their marks.
   B.  enjoin use of the term "genuine".
   C.  insist that refurbished goods be so labeled.
   D.>  recover Woodstock's profits from its outrageous free riding.

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D. Miscellaneous


Answer only 5 of 7.

1.  Grama's patent covers the use of an unpatented machine and unpatented rivets to attach road signs to supports. It sells the machines but makes most of its money selling rivets. Beta has been supplying rivets for use with Grama's machines. If Beta is sued for infringement, it should:
   A.  win because purchasers of Grama's machines have unconditional rights to use them.
   B.  win unless Grama attaches explicit licenses to some of its machines.
   C.  win unless Grama attaches explicit licenses to all of its machines.
   D.  lose because the machines and rivets are unpatented.

2.  When one of Huffman's patents expired, Gabor got copies of related blueprints from Jones, a former employee. If Huffman sues to prevent Gabor from using those blueprints, it:
   A.  should lose because its patent has expired.
   B.  should lose if Jones breached no written agreement.
   C.  might get an injunction against Gabor's ever using anything shown in the blueprints.
   D.  might get a lead-time injunction.

3.  When one of Apex's patents expired, Froob copied their specific design. If Apex sues for trade dress infringement under 43(a), it is most likely to lose:
   A.  if its overall design is non-functional.
   B.  because aspects of its trade dress were disclosed in its patent.
   C.  if inability to copy precludes Froob from sharing in the goodwill of the product.
   D.  because equivalent state laws permitting such suits are preempted.

4.  The Christian News Service (CNS) distributes facts collected from stories in major newspapers. It does not compete with the newspapers, and its stories run a week or more after the originals. If sued for misappropriation, CNS should win because:
   A.  facts are not covered by copyright.
   B.  its service is not time sensitive.
   C.  it does not compete with the originals.
   D.  of all of the foregoing reasons.

5.  Abercrombe sells T-shirts featuring the famous Fitch, a ball player, in an unflattering way. If Fitch sues for violation of his rights, he should:
   A.  win if such shirts qualify as noncommercial speech.
   B.  lose if such shirts qualify as noncommercial speech.
   C.  win because sales will interfere with any shirts he may license.
   D.  lose because sales won't interfere with any shirts he may license.

6.  Jerk used to distribute Sue Canterbury's replica Shaker baskets. Jerk urged her to sell imitation baskets made in Mexico, but she refused. Later, she learned that he quietly began to distribute such imitations as "Canterbury" Shaker replicas. In a § 43(a) suit, Canterbury should:
   A.  lose because patents or copyrights on Shaker baskets would have expired long ago.
   B.  win only if she can show that her surname has secondary meaning.
   C.  win because secondary meaning in her surname will be presumed.
   D.  lose for lack of state or federal trademark registration.

7.  Should, for whatever reason, Canterbury not prevail against Jerk (Q6) for source confusion, she can probably:
   A.  recover for product disparagement, but not under the Lanham Act.
   B.  get an injunction, under the Lanham Act, to stop Jerk's false ads.
   C.  not enjoin, on any theory, Jerk's ads because that would be a prior restraint.
   D.  enjoin Jerk's sales, under the Lanham Act, of Mexican Shaker-style replicas.

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Part II: Matching

[20 points]

Definitions match only one numbered term. Please enter the best letter in the corresponding space on the answer sheet. Only the first 20 answers will count.
1.  [U] Dvorak keyboard               13. [M] Dilution

2.  [B] Business method               14. [X] Unfair competition

3.  [G] Idea                          15. [A] Contributory liability

4.  [N] Generic trademark             16. [Q] Bad faith

5.  [D] Exhaustion of right           17. [R] Willfulness

6.  [C] Laches                        18. [F] Tie-ins

7.  [E] Non-infringement              19. [K] Limited time requirement

8.  [H] Opposition                    20. [T] Reverse engineering

9.  [V] Registration                  21. [P] Profits

10. [I] Rights for commercial speech  22. [O] Attorney fees

11. [S] Rights to exclude             23. [W] Duration of rights

12. [L] Rights to publicity           24. [J] In commerce
A.  An unlikely basis for prevailing in a trademark suit against a knock-off.
B.  Protectable by patent or trade secret.
C.  Delay may cause loss of remedy.
D. Consequence of a non-infringing sale.
E.  Avoids all IP liability.
F.  May give rise to the defense of unclean hands.
G.  Often contrasted with "expression".
H.  Possible for trademark, but not for patent or copyright, applications.
I.  Concerns consumers' rights to useful information.
J.  More easily satisfied in protecting source indicators for services than for goods.
K.  Would probably prevent trade secret protection based on Art. I, § 8, cl. 8.
L.  IP for famous people.
M.  Occurs when unrelated parties share a source indicator.
N.  An oxymoron.
O.  An often discretionary, strictly statutory remedy.
P.  Sometimes recoverable instead of damages.
Q.  Influences the recovery of statutory or multiple damages.
R.  Needed to impose criminal copyright sanctions.
S.  The essence of all forms of intellectual property.
T.  Infringes patent, but not trade secret, rights.
U.  Potential trade dress protection is unlikely.
V.  Tends to confirm existing rights.
W.  Greater for dolls than for boat hulls.
X.  A cause of action often much narrower than literally suggested.
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Index to Field's Other IP Exams