Administrative & Related Processes in IP final examination fall 1996
Instructions
This is a two hour, open-book exam. You may consult written materials, but discussion is not permitted. There are thirty (30) true/false questions. Answer only twenty-five; I will only grade the first twenty five that are answered.Please put your exam number on each page and answer on these sheets. For each question you answer please write "true" or "false" in the space provided. Explanations are unnecessary. Should you feel compelled to explain, please use the reverse side of the sheets. Be sure to indicate which question your explanation addresses.
Questions -- correct answers indicated1. It is almost universally appreciated that attorneys with technical backgrounds are better suited than those without for practice before agencies such as EPA or FDA. [False]
2. PTO rules governing who may sit for the patent exam, in contrast with most PTO rules, are not promulgated by notice and comment proceedings. [True]
3. The Register of Copyright and Librarian of Congress do not consistently maintain that the Copyright Office is within the legislative branch. [True]
4. If the PTO becomes a government corporation, it will, of necessity, be more subject to private control than it is now. [False]
5. The Copyright Office lacks authority to engage in 5 U.S.C. § 553 rulemaking. [False]
6. A FOIA request for records in the possession of the Copyright Office is treated much the same as one for records in the possession of the PTO. [False]
7. Patent examiners do not have ready access to lab equipment they might need, e.g., to demonstrate the inoperability of inventions under 35 U.S.C. § 101. [True]
8. Fressola illustrates how a PTO requirement appearing only in the M.P.E.P. may be enforced against an applicant. [True]
9. TTAB decisions turning on the credibility of experts who have designed and overseen surveys must be based on live testimony taken in the presence of Board Members. [False]
10. Alappat demonstrates that most applicants are eager to seek review of the adequacy of PTO adjudicatory processes. [False]
11. Cogar is a classic instance of reversing the PTO on Fifth Amendment grounds. [False]
12. If one has a choice of having an issue resolved in the context of either an appeal or a petition, the former is preferable because courts will afford the PTO less deference. [True]
13. Unlike the situation with patents, all trademark petitions as well as appeals occur within the framework of "statutory" review. [False]
14. Unlike the situation with patents, statutory district court review of trademark cases need not be brought in the Distict of Columbia. [True]
15. In Fregeau, the CAFC held that, aside from new evidence, the standard for review of facts is the same under 35 U.S.C. § § 141 and 145. [True]
16. In a recent case (Kemps), the CAFC found it appropriate to review PTO fact finding under the "capricious and arbitrary" standard. [False]
17. Those who challenge a trademark user's registration or pending application may participate in the PTO on the same basis as the registrant or applicant. [True]
18. Those who challenge a patent's validity may participate in PTO re-examination on the same basis as the patentee. [False]
19. It is uniformly held that a copyright owner need only file with the Copyright Office before being able to sue an infringer. [False]
20. No FOIA request turning on the interpretation of 35 U.S.C. § 122 has yet gone to the CAFC. [True]
21. No private bill has ever been held unconstitutional. [False]
22. Generally tort suits against the federal government are brought in district courts, not the Court of Federal Claims. [True]
23. Besides the PTO and the courts, intellectual property disputes between private parties may also be effectively resolved by the International Trade Commission. [True]
24. Dicta in Animal Legal Defense Fund would pose a problem for most substantive rule making by the PTO. [True]
25. PTO rule making under 5 U.S.C. § 553 generally concerns rules explicitly exempt from APA rulemaking requirements. [True]
26. Provisions in 18 U.S.C. afford trademark protection to named charitable organizations akin to that afforded by private bills. [True]
27. Courts accord facts found by the PTO more deference than they afford the PTO's resolution of issues of law. [True]
28. Published CAFC decisions are far more apt than unpublished ones to reverse the PTO. [True]
29. Most adjudications within the PTO are "formal" (as that term is generally used in administrative process). [False]
30. Nonstatutory review of PTO fact finding is most likely to be under the substantial evidence standard. [False]
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