COPYRIGHT & PATENT FINAL EXAMS
IPL 134
PROF. VICENTE B. AMADOR
Date Released: March 10, 2010
The Exams for Graduating Students will be released earlier in time for their Graduation. They should submit their Exams before April 24, 2010, which they said is the last day for Exam Submission for Graduating Students.
The Non-Graduating Students may have from March 15, 2010 to April 15, 2010 to submit their Exam papers.
1. Which one of the following pairs of persons are joint authors? (20%)
Answer:
a. A faculty member comes up with an idea for a web page and a graduate student designs the page based on the faculty member's idea.
b. A faculty member and one of her students orally agree that they will collaborate on an interactive online tutorial. One authors a PowerPoint presentation and the other writes the code to convert the PowerPoint presentation to an interactive online tutorial.
c. A faculty member and a photographer discuss collaboration, agreeing on what each will contribute (textual content and photographs, respectively) and what rights each expects to have in the finished work, explicitly concluding that they both intend to be joint authors of the entire tutorial when it is finished.
2. Which of the following employers successfully acquire copyright from the author of the described software? (20%)
a. The author is an employee whose job responsibilities include computer programming. He creates a program to convert power point presentations to interactive online tutorials.
b. The author is hired to write a program to convert power point presentations to interactive online tutorials. He signs a contract, but it does not mention copyright or work-for-hire.
Answer:
3. If you want to make of another's original work and it is not covered by any of the provisions of Section 184, may your action still be considered a fair use and can it be analyzed using the Four Factor Fair Use Test? (20%)
Answer:
4. True/False:
A faculty member cannot be sued individually even if his or her actions in using someone else's work infringe another's rights because the faculty member is just an employee doing his or her job. (20%)
Answer:
5. True/False:
A faculty member who fails to follow University Policy on Fair Use of Copyrighted Materials under Section 185 should nevertheless be fully indemnified if his or her actions result in a lawsuit naming the faculty member as a defendant. (20%)
Answer:
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ESSAY QUESTION (20%)
PMI is a non-profit association for project management professionals (PMPs). PMI first offered a PMP certification exam in 1984 and first published a work entitled Project Management Body of Knowledge in 1987. In 1996, PMI published a superseding copyrighted work entitled Guide to the Project Management Body of Knowledge, referred to as the PMBOK.
PMI's PMP exam has been “based upon” the PMBOK during the period relevant to the dispute. The PMBOK’s introductory statement of purpose suggests that it serves as a desk reference work for practicing project managers as well as a “consistent structure” for PMI's certification of PMPs.
PMI certification has come to be viewed as an important credential, creating a market for textbooks and courses that prepare aspiring PMPs to pass the PMI exam. PMI website materials suggest that PMI, colleges and universities, and numerous private vendors have entered this market. Because PMI bases the PMP exam on the PMBOK, a comprehensive reference work, it is hard to imagine that a vendor could devise a successful course teaching students to pass the PMP exam without using-or plagiarizing-the PMBOK. In this regard, PMI's copyright notice in the front of the PMBOK advises:
All rights reserved. Permission to republish in full is granted freely. No part of this work may be reproduced or transmitted in any form without prior written permission of the publisher.
Koko is an expert in the field of project management who offers test preparation courses and materials to teach students to pass the PMP exam. Koko wrote and copyrighted PMP Exam Prep. The book begins with materials specifically focused on passing the PMP exam that have no counterparts in the PMBOK. Subsequent sections, which are entitled “The Materials” and take up 150 of the work's 165 pages, track the PMBOK 's organization of the project management “knowledge areas” and reproduce or condense the materials presented in the PMBOK.
Loco offers a variety of exam preparation and professional training courses. Loco retained Eric Nielsen to develop the substantive content for a PMP exam preparation course. Loco began offering the four-day course in September 2001, using the PMBOK as the “primary reference” and also distributing to students loose-leaf materials called the Candidate Notetaker. Koko soon learned of the significant similarities between Loco’s Candidate Notetaker and Koko’s PMP Exam Prep. Koko compared the two works and informed Loco that he had revised Koko’s course materials to remove what Koko believed to be the infringing content. Koko filed this lawsuit. Nielsen testified that he used Koko’s PMP Exam Prep and other reference works in preparing the Loco course materials and sample test questions.
1. What are the essential elements of a copyright infringement claim? Define and explain the exclusive rights of an Author under the IP Code.
2. What are the two basic categories of copyright-protected works and how are they differentiated from each other?
3. If you are the counsel of Koko, how will you prove the charge of copyright infringement against Loco?
4. If you are the counsel of Loco, how will you defend him against the claim of copyright infringement?
5. If you are the Judge assigned to the case, how will you decide it?
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ESSAY QUESTION ( 20%)
Copying of Industrial Design
QUESTIONS 1
Wang Do Motor Company of South Korea manufactures general purpose diesel engines that it exports to the Philippines
Wang Do informed its Philippine counsel of this fact and asked him to prosecute Ang Tibay Engines Corp. for copyright infringement. Its counsel decided to file a notice of copyright in the name of Wang Do with the National Library and filled up all the details required in the form. He submitted and attached to the copyright form the promotional materials and leaflets that carry images of the Wang Do general engines. He subsequently filed a copyright infringement complaint based on Ang Tibay Engine Corp.’s copyright of the engines depicted in the leaflets.
Did Ang Tibay Engine Corp. commit copyright infringement when it manufactured and sold general purpose engines that look like Wang Do’s general purpose engines? Justify your answer on the basis of legal principles and/or statutory provisions.
QUESTION 2:
Assume that instead of leaflets depicting the Wang Do general purpose engines, its counsel instead filed technical drawings of the engines and attached them to the copyright form, and proved that that Ang Tibay Engine Corp. photocopied the drawings from the records of the National Library, would there be a basis to claim that there is copyright infringement of the drawings by using them to manufacture identical-looking general purpose engines?
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ESSAY QUESTION ( 20%)
QUESTION 3:
Bridgeport Music, Inc., Westbound Records, Inc., et. al. vs. Dimension Films et. al involved a copyright infringement complaint arising out of the use of a sample from the composition and sound recording "Get Off Your Ass and Jam" ("Get Off") in the rap song "100 Miles and Runnin' " ("100 Miles"), which was included in the sound track of the movie I Got the Hook Up (Hook Up ).
The recording "Get Off" opens with a three-note combination solo guitar "riff" that lasts four seconds. According to one of plaintiffs' experts, Randy Kling, the recording "100 Miles" contains a sample from that guitar solo. Specifically, a two-second sample from the guitar solo was copied, the pitch was lowered, and the copied piece was "looped" and extended to 16 beats. Kling states that this sample appears in the sound recording "100 Miles" in five places; specifically, at 0:49, 1:52, 2:29, 3:20 and 3:46. By the district court's estimation, each looped segment lasted approximately 7 seconds. As for the segment copied from "Get Off," the district court described it as follows:
The portion of the song at issue here is an arpeggiated chord--that is, three notes that, if struck together, comprise a chord but instead are played one at a time in very quick succession--that is repeated several times at the opening of "Get Off." The arpeggiated chord is played on an unaccompanied electric guitar. The rapidity of the notes and the way they are played produce a high-pitched, whirling sound that captures the listener's attention and creates anticipation of what is to follow.
The portion of the song at issue here is an arpeggiated chord--that is, three notes that, if struck together, comprise a chord but instead are played one at a time in very quick succession--that is repeated several times at the opening of "Get Off." The arpeggiated chord is played on an unaccompanied electric guitar. The rapidity of the notes and the way they are played produce a high-pitched, whirling sound that captures the listener's attention and creates anticipation of what is to follow.
1. What are the elements of originality in a musical composition?
2. Is there actionable copyright infringement complaint from the use of a sample from the composition and sound recording "Get Off Your Ass and Jam" ("Get Off") in the rap song "100 Miles and Runnin' " ("100 Miles")?
3. Since the sample was also used in the soundtrack of the movie I Got the Hook Up (Hook Up), is the movie equally infringing?
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Essay Question ( 20%)
A faculty member has begun work on multi-media courseware materials she plans to use with her students for Geology 401. She made arrangements with the technical support team and obtained a PhP50, 000 grant from the University to help fund her project. She plans to hire a graduate student to do programming for her. Her brother-in-law a commercial artist has agreed to do 11 graphic illustrations for her.
1. Who among the persons mentioned above will own the courseware materials and why?
2. Will they be considered authors only of their respective contributions or co-authors of the courseware on Geology 301?
3. Does the University qualify as a co-author/owner by reason of its financial grant for the project? If it does not so qualify, please explain under what circumstances, if any, it would achieve such objective?
4. Please explain, with respect to each of the copyright works above, whether the intended use will be considered fair or whether there are legal limits that the faculty member must observe?
5. If the participants in this project go beyond the legal limits of fair use, who should be held responsible for copyright infringement? Can the website operator be held liable for copyright infringement?
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PATENT ESSAY
HEMP STRIPPING MACHINE (50%)
Plaintiffs allege that they are the owners of a patent covering hemp-stripping machine No. 1519579 issued to them by the Bureau of Patents and Trademarks. The important feature of the machine "is a spindle upon which the hemp to be stripped is wound in the process of stripping." Plaintiffs have for some time been manufacturing the machine under the patent.
Plaintiffs allege that defendant manufactured a hemp-stripping machine in which, without authority from the plaintiffs, he has embodied and used such spindles and their method of application and use, and is exhibiting his machine to the public for the purpose of inducing its purchase. Plaintiffs claim that the use by the defendant of such spindles and the principle of their application to the stripping of hemp is in violation of, and in conflict with, plaintiffs' patent, together with its conditions and specifications. The defendant's machine is allegedly an infringement upon the patent granted the plaintiffs, and plaintiffs pray for an injunction that the defendant be required to account to plaintiffs for any profits he may have made by reason of such infringement.
The plans and specifications upon which the patent was issued recite:
"Our invention relates to hemp stripping machines and it consists in the combinations, constructions and arrangements herein described and claimed.
"An object of our invention is to provide a machine affording facilities whereby the operation of stripping hemp leaves may be accomplished mechanically, thereby obviating the strain incident to the performance of hemp stripping operations manually."
And on page 3 of the application for patent, it is said:
"Obviously, our invention is susceptible of embodiment in forms other than that illustrated herein and we therefore consider as our own all modifications of the form of device herein disclosed which fairly fall within the spirit and scope of our invention as claimed.
"We claim:
"1. In a hemp stripping machine, a stripping head having a supporting portion on which the hemp leaves may rest and having also an upright bracket portion, a lever of angular formation pivotally attached substantially at the juncture of the arms thereof to the bracket portion of the stripping head, whereby one arm of the lever overlies the supporting portion of the stripping head, a blade carried by said one arm of the lever for cooperating with said supporting portion, means connected with the other arm of the lever and actuating the latter to continuously urge the blade toward said supporting portion of the stripping head, and a rotatable spindle positioned adjacent to said stripping head, said spindle being adapted to be engaged by hemp leaves extending across said supporting portion of the stripping head underneath said blade and being operable to draw said hemp leaves in the direction of their length between said supporting portion of the stripping head and said blade.
"2. In a hemp stripping machine, a stripping head having a horizontal table portion, a rest supported upon said table portion, a stripping knife supported upon the table for movement into and out of position to cooperate with the rest to strip hemp leaves drawn between the knife and the rest, and power driven means adapted to be engaged with said hemp leaves and to pull the latter between the knife and rest, said power driven means including a rotating spindle, said spindle being free at one end and tapering regularly toward its free end.
"3. In a hemp stripping machine, a stripping head having a horizontal table portion and an upright bracket portion, a rest holder adjustably secured on the table portion, a rest resiliently supported by the holder, a knife carrying lever of angular formation and being pivotally attached substantially at the juncture of the arms thereof to the bracket portion of the stripping head, whereby one arm of the lever overlies the rest, a blade adjustably supported on said one arm, for cooperating with said rest and gravity means connected with the other arm of the lever and actuating the latter to continuously urge the blade toward the rest."
The spindle upon which the patent was obtained, together with the spindle upon which the defendant relies are exhibits in the record and were before the court at the time this case was argued. The spindle of the plaintiffs was made of wood, conical in shape and with a smooth surface. That of the defendant was somewhat similar in shape, but was made of metal with a rough surface, and the defendant claims that his spindle was more effective and would do better work than that of the plaintiffs.
Questions:
1. Do the plaintiffs have a valid cause of action against the defendant for patent infringement?
2. Is there a way by which the defendant could have avoided the charge of patent infringement?
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OIL SPILL RECOVERY SYSTEM (50%)
The Solar 1 oil spill at Guimaras Island in Iloilo
The Filipino inventor is the registered owner of a Utility Model Patent in the Philippines
The Filipino inventor submitted a bid for the Solar oil recovery project but the insurer who was paying for the clean up costs retained the services of the Italian company. Undeterred and determined, the Filipino inventor published a Warning Advertisement in a newspaper of general circulation in substantially the following language:
The Solar oil tanker containing 1,700,000 liters of oil at a depth of 640 meters cannot be recovered by the system of the Italian Company, which is also patented under an European patent European Patent 1 449 763. No suction pump has the capacity to siphon the oil at a depth of 640 meters. The displacement method under the Philippine Utility model patent and the US Patent 5795103 is the safest, easiest and cheapest way of recovering oil from Solar 1.
The displacement method is undertaken by pumping oil into the compartment of the oil tanker through the intake line and the oil automatically will exit through a second line leading to the oil recovery vessel at the water surface.
The paid advertisement is published for the sake of national interest and was addressed to the government agencies participating in the oil recovery effort to dissuade them from availing of the “unreliable system” of the Italian company.
`Under the Utility Model Patent, the elements of the Philippine invention covering an Oil Tanker for Recovering Oil from a Submerged Oil Tanker or Vessel are:
1. a hull with at least one oil-containing compartment;
2. an inlet communicating with said oil-containing compartment said inlet having a flexible inlet line with one end attached to the inlet and a free end with floating means attached to the exterior of the compartment
3. means for maintaining the inlet line, discharge line and floating means exterior of the said one compartment whereby said line and discharge lines will be caused to be deployed to rise to the surface upon said vessel being submerged.
In contrast, Italian company’s technology described in its European Patent No. 1 449 763 employs the following elements and/or steps:
1. an effluent evacuation device with at least one pipe and a first valve installed to work with an opening in the hull or tank of a sunken ship to recover the polluting effluent flowing through the opening rising to the evacuation device;
2. recovery of the effluent from the opening in the hull or tank; where the effluent is recovered using a shuttle reservoir with at least one bottom orifice working with the evacuation device for the performance of the following steps:
(i) lowering the shuttle reservoir from the surface to the sea bed while causing the bottom orifice of the shuttle reservoir to cooperate with the evacuation device;
(ii) filling the shuttle reservoir with the effluent and closing it when filled to make it leak tight.
(iii) allowing the shuttle reservoir to rise to the surface once full and equipped with buoyancy elements
(iv) storing the shuttle reservoir filled with effluent in a ship on the surface and employing said reservoir on the ship for emptying to another site
(v) repeating steps (i) to (iv) with the same elements until the desired quantity of effluent has been recovered.
The Filipino inventor claimed that the system of the Italian company infringes the claims under his Philippine Utility Model patent and his US Patent.
Question:
1. Can the Filipino inventor, who has a Philippine Utility Model Patent and a separate US patent with broader claims than the Philippine UM Patent rely not only upon his Philippine UM Patent but also upon the claims of US Patent?
2. If you are the patent counsel of the Filipino inventor, how will you argue his case for patent infringement based on the language of the claims in the Philippine and US Patents?
3. If you are the patent counsel of the Italian company, how will you defend it against the charge of patent infringement?
4. Based on the facts of the case, what cause of action may the Italian company have against the Filipino inventor?
Wow! These questions are awesome! It really burn my head out!
ReplyDeleteThanks for posting. It really helps!
again, just posted this from my professor. i didn't make this. but as long as it helps. :)
ReplyDelete