Science, Technology & Administrative Process final examination spring 1995
General Instructions
This is a two hour, open-book exam. You may consult written materials, but discussions with others are not permitted. Be sure to put your exam number on each page you turn in for grading.
There are thirty (30) true/false questions; each counts 4%. Answer only twenty-five(25), I will only grade the first twenty five that are answered. Please answer on these sheets. Explanations are unnecessary. Should you feel compelled to explain, please use the reverse side of the sheet. Be sure to indicate which question your explanation addresses.
Questions
For each question you answer [only 25 of 30], please write "true" or "false" in the space provided.
1. PTO disciplinary procedures generally resemble other ex parte PTO proceedings.
2. People who challenge issued patents within the PTO generally participate at the same level as patentees both within the PTO and on appeal.
3. The CAFC can directly review all PTO patent petitions under § 141.
4. Most adjudications within the PTO are "informal" (as that term is generally used in administrative process).
5. Both jury trials and formal agency actions are reviewed for "substantial evidence."
6. On its face, F.R.C.P. 52(a) governs only review of district court bench trials.
7. Courts rarely review the PTO under the "capricious and arbitrary" standard.
8. Those who can challenge a trademark user's registration or pending registration within the PTO are not restricted in their ability to participate.
9. The CAFC held "clearly erroneous" to apply under both § 141 and § 145.
10. The PTO has often used § 553 to make substantive rules.
11. Generally, one has little difficulty in getting current PTO Examiners to testify of a wide variety of issues in infringement cases.
12. In Rydeen, petitioner faced little difficulty in getting his patent reinstated.
13. That patent examiners are able to evaluate fully all aspects of an invention's utility is open to little debate.
14. If a court were to hold that the Copyright Office is part of the legislative branch, its procedures would still be governed by the APA.
15. From a Constitutional standpoint, there is little difference between a private bill redressing an economic injury and one extending the term of a patent or copyright.
16. Freedom of Information Act indices for available government documents are of little importance now that outsiders can search the text of most such documents by computer.
17. Motivation to make the PTO a government corporation is mostly economic.
18. Direct review of Copyright Office registerability decisions is unlikely to succeed.
19. Dicta aside, Animal Legal Defense Fund primarily involved standing.
20. The TTAB always requires that a party opposing registration of a mark demonstrate that such registration will cause it commercial harm.
21. If an issue is one of "law," review is generally more intensive than otherwise.
22. Published and unpublished CAFC decisions do not necessarily send the same signals about its willingness to reverse the PTO.
23. "Published" PTO decisions are ones designated as such by the Solicitor.
24. The CAFC can directly review all PTO trademark petitions under § 21.
25. The standard of review for informal agency action is generally "de novo."
26. Challenging PTO process under the 5th Amendment is less likely to succeed than doing so under the statutes or 37 C.F.R.
27. Attorneys appearing before agencies such as EPA, FDA or OSHA generally do not have technical training.
28. Procedurally, the ITC resembles the NLRB more than the PTO.
29. Inter partes hearings before the TTAB and BPAI generally resemble bench trials.
30. Agencies can generally rely on "incompetent" evidence.
