Administrative and Related Processes in Intellectual Property final examination fall 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.
There are 30 questions; answer only 25 -- on these sheets. If more are answered, I will grade only the first 25.
Explanations are unnecessary. If you feel compelled to explain, use the reverse side of the sheet. Please do not make me guess which question your explanation might address.
Questions
Please write "true" or "false" in the space provided.
1. "Rules" that appear only in the MPEP do not bind people outside the agency.
2. Generally agency action must be "final" before courts will review it.
3. Court review of all trademark petitions and appeals is governed by 15 U.S.C.
4. 5 U.S.C. prohibits agencies other than the PTO from allowing nonlawyers to make appearances on behalf of others.
5. The term "de novo" in the context of court review can mean at least three relatively distinct things.
6. Patent examiners are useful and freely available witnesses in infringement litigation.
7. "Unpublished" PTO decisions are ones that do not appear in the USPQ.
8. The PTO is on solid ground in forbidding parties from citing its unpublished decisions.
9. According to at least one CAFC decision, "clearly erroneous" is the appropriate standard of review for most PTO decisions both directly and in the district court.
10. All district court actions to review PTO trademark decisions must be filed in DC.
11. Animal Legal states that the Commissioner of the PTO has no rulemaking authority.
12. In Rydeen, the standard of review for non-Constitutional issues was clearly erroneous.
13. Patent examiners are technically incompetent to evaluate utility in some ways that term could reasonably be defined.
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. The Court of Claims sometimes handles matters that would not pass muster as "cases or controversies."
16. Actions in the nature of mandamus are highly favored for getting relief from adverse administrative decisions.
17. Having someone other than the President appoint members to a PTO advisory board would clearly violate the Appointments Clause.
18. The Supreme Court in Betamax gave more than ample attention to joinder and standing.
19. A court disagreeing with the PTO over the severity of a sanction in a Part 10 proceeding would be likely to reduce it.
20. The Copyright Office probably has authority to require practitioners before it to pass some kind of bar examination.
21. The First Circuit in Digital v. Diamond was sceptical about the ability of patent examiners to deal with issues of fraud.
22. The Federal Circuit is unlikely ever to review the applicability of 35 U.S.C. §122 as the basis for a FOIA exemption.
23. Monetary relief is clearly not permitted under the APA.
24. Given differences between the process set forth in organic legislation and that set forth in enabling legislation, the latter controls.
25. Most adjudication within the PTO is best characterized as "formal."
26. Stare decisis makes ad hoc rules applicable to non-participants.
27. Several agencies have been created by common law.
28. Procedurally, the ITC resembles the NLRB more than the PTO.
29. Agencies without much policy discretion are often called "ministerial."
30. Agencies can generally rely on "incompetent" evidence.
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