1. You have three (3) hours to complete this exam. You have three hours to complete this exam. You are not required to spend the entire time working on the exam - the average time for completion is between two and three hours. It is strongly recommended that you outline your response to each question, before writing the response. It is recommend that you spend one third of the time on each question creating your outline, and the remainder of your time writing your answer. For example, if you spend 1.0 hour per question, devote 20 minutes to the outline, and 40 minutes writing the answer.
2. THIS IS AN OPEN BOOK, OPEN MATERIALS EXAM. You may use any written notes, books or other materials to assist you in responding to the questions.
3. There are three (3) essay questions on this exam. The first two questions
are worth thirty-three (33) points, and the third question is worth thirty-four
(34) points. The third question pertains to patent law. This question will be
graded by Adjunct Professor Morrill. YOU MUST ANSWER THE THIRD (PATENT)
QUESTION IN A SEPARATE BLUE BOOK, LABELED “PATENT QUESTION”.
If you need more than one blue book to answer this third question, each blue
book you use must be labeled “Patent Question”. The remainder of
the exam will be graded by Prof. Greenberg. Answer each question as fully as
you can, citing any appropriate cases, industry standards, and statutes that
are relevant. Students often fail to allocate enough time for the Patent question,
so we recommend that you work on that question first.
4. Please write your responses in the blue books provided to you. Write only
on one side of the page and double-space your work. Please write legibly. If
it is not possible to read your response to a question, your grade will be adversely
affected.
5. Write you exam number on your exam envelope, at the top of this exam question
packet and your used blue books. Do not use your name, student
ID number or Social Security Number on any exam materials.
6. At the conclusion of the exam, return all exam materials to the exam envelope
and submit it to the proctor. Do not seal the envelope. Students
who do not return all exam materials at the end of the exam may not be graded.
QUESTION NO. 1 (33 Points)
You have been retained to represent a political action group called AARFF (Americans Against Repulsive Fatty Foods) which is protesting the addition of MacDonalds hamburgers and other products into high school lunch programs across America. AARFF has produced a television commercial in which a fictional high school is shown. In the high school lunch room, a student is tied to chair, and force fed MacDonalds hamburgers (identifiable because of the use of packaging taken from real MacDonalds burgers) until he explodes. Feeding him the burgers is a robot built to look exactly like the robot in the popular film series, The Terminator, starring Arnold Schwarzenegger. Ater each feeding of the student, the robot character looks out from the screen to the audience and says, in a heavy Austrian accent, “I’ll be back”, at which point the tied-up student screams in agony. (This dialogue is a famous line from the first Terminator movie).
AARFF has been sued, after the commercial has aired across the country, by MacDonalds for trademark infringement, and trademark dilution. Assume that MacDonalds has registered its mark with the U.S. Trademark Office. AARFF has also been sued by Arnold Schwarzenegger for violation of his right of publicity. Both suits have been filed in Los Angeles, California, where AARFF has its principal offices, and where Scharzenegger has a home, and MacDonalds has restaurants. AARFF asks you to identify the proper court for each of these claims, and evaluate the merits of each claim, and analyze the defenses available to AARFF. As is typical with most clients, AARFF also wants to know who is likely to win each of these cases, and why. What is your advice to AARFF?
QUESTION NO. 2 (33 Points)
You have been consulted by Condor Productions, a non-profit film production company which promotes fundamentalist religious values in the Judeo-Christian tradition. Condor has recently produced and released a four- hour documentary whose view is that the recently completed eight-hour film trilogy based on J.R.R. Tolkien’s Lord of the Rings stories is part of a world-wide conspiracy to promote the replacement of Judeo-Christian values with a belief in the powers of so-called “white magic”. The documentary, entitled The True Lord of the Rings and the Sky Above contains 90 minutes of film clips from the recent movie series and 20 minutes of excerpts from the books read in a voice-over. The film clips include the two climactic battle scenes from the second and third movies, as well as the struggle the lead Hobbit character, Frodo Baggins, has with his good and evil natures, as he tries in the finale of the series, to decide whether to throw the evil ring of power into the fire pit inside the Mountain of Doom. The written excerpts are also key portions of the books, including the love scenes between Aragorn, the human prince, and his elf princess lover, which the documentary condemns as un-natural.
Condor has been sued by New Line Cinema, owner of the film series, and by the Estate of J.R.R. Tolkien. Both plaintiffs are suing for copyright infringement. Condor asks your advice as to the following questions: what do the plaintiffs have to prove in order to win on a claim of copyright infringement? What defenses can Condor raise in response to the suit; and what is the likely outcome of the suit – who will win and why?
QUESTION NO. 3 (Patent Question) (34 Points)
Golden Gate University Law School IP Law Survey
Patent Law Question
Fall Semester, 2004
Robert B. Morrill
When a bottle of wine is opened and not finished, it is often closed for storage with its original cork or screw cap. However, the presence of oxygen in the empty space in the bottle in contact with the remainder of the wine will cause the wine to oxidize and acquire a bad taste.
To solve this problem, VacuVin Corp. (“VV”) developed a simple, inexpensive method for removing most of the air from a partially empty wine bottle, thus reducing the amount of oxygen in contact with the wine. Up until the VV method, systems for preservation of wine in an opened bottle cost many hundreds of dollars.
VV’s method uses a simple plastic hand pump and a special rubber stopper. The rubber stoppers have a slit up the center, through which air is removed from the bottle by using the pump, creating a partial vacuum in the bottle. The slit closes and makes an airtight seal when the pump is removed. To release the vacuum, the stopper is squeezed to open the slit and let air back into the bottle.
VV obtained two claims in its ‘001 patent, a method claim on use of the pump and stopper, and a claim on the stopper itself. VV was not able to obtain a claim on the pump itself, because similar pumps were already in existence, although used for different purposes.
VV’s claims read:
1. A method of removing a portion of the air from a partially empty bottle
of liquid, comprising the steps of:
a. inserting a rubber stopper in the neck of the bottle, the stopper having
. . . [the detailed description of the ribs, top seal, slit, etc. of the
stopper which is contained in the claim is omitted in this exam for brevity]
b. placing a pump having . . . [the detailed description of pump which is
contained in the claim is omitted in this exam for brevity] upon the top
of the stopper,
c. using the pump to remove a portion of the air within the bottle through the
slit, and
d. removing the pump, allowing the slit to close and seal the bottle.
2. A bottle stopper comprising . . . [the detailed description of the ribs, top sea, slit, etc. of the stopper which is contained in the claim is omitted in this exam for brevity].
Please answer the following questions as to the above facts, and any additional facts contained in the question:
Question 1. (11 points) SealVin, Inc. (“Seal”) began competing with VV, selling essentially identical stoppers and pumps with a brochure explaining their use. VV sued Seal for infringement of the ‘001 patent, and Seal proves the following at the trial:
What possible arguments do facts a. through d. give to Seal that either claim 1 or claim 2 of the ‘001 patent is invalid? What arguments in response can VV make?
Question 2. (6 points) At the trial, Seal also proves that
the inventor of the VV method and hardware reached a conclusion on May 1, 2000
that the best material for making the stoppers was an artificial rubber called
“Neoprene B7”, but that he forgot to mention this detail to his
patent attorney, and so it was not included in the ‘001 patent.
What arguments, if any does this fact give to Seal that either claim 1 or claim 2 of the ‘001 patent is invalid? What responses can VV make?
Question 3. (11 points) For this question, assume that claims
1 and 2 of the ‘001 patent are valid. The evidence at trial showed that
Seal sold 100,000 pumps, which were always packaged with six stoppers and instructions
on use. Is Seal liable to VV for infringement of claim 1 or claim 2 because
of its sale of pumps? Why or why not?
Question 4. (9 points) For this question, assume that claims
1 and 2 of the ‘001 patent are valid. What damages should VV seek, and
what defenses to those damage claims should Seal raise, if the following facts
are proven:
END OF EXAM