INTERNATIONAL INTELLECTUAL PROPERTY
FINAL EXAMINATION -- SPRING 1996

Please read and sign the following pledge, and get a time-stamp for this page, before turning this page and taking the exam:

I hereby pledge, promise, and affirm:

that I will in taking this exam rely solely on my own efforts and will not confer with anyone about the contents of this exam or my answers to it;

that I will not reveal to any person any information about the contents of this exam, or my answers to it, from now, through the period in which I am taking the exam, and until May 14, 1996; and

that I will not copy this exam in whole or in part.

Signed: ____________________________

Date: ____________________________

Time: ____________________________

You have four hours from the time stamped above to return your completed exam. You may now turn this page and start.

This exam consists of four questions. You have four hours in which to travel to and from your workplace, to read this and the attached material, and to outline and write your answers. The first question counts for 15% of your total grade for this exam; the second counts for 25%; the third counts for 30%; and the fourth counts for 30%. I suggest that you allocate your time accordingly.

I strongly advise that before you begin writing your answers you 1) read the question carefully; 2) think about exactly which issues you need to address; and 3) outline your answer. Good organization and good analysis almost always go hand-in-hand.

Use as many exam booklets or sheets of paper as you need. Start your answer to each question in a new booklet or sheet and number the booklets or sheets so that I can easily follow their intended sequence. Please write or type on one side only of each page.

For your benefit and my eyesight, please write as legibly as possible -- or type.

This is an open book exam. You may use your casebook, statutory supplement, any material that I handed out in class, and any notes that you or your study group prepared. The only restrictions on your use of study aids appear in the pledge that you signed upon picking up this exam; i.e., do all the work yourself.

If you have any procedural questions, please direct them to Jennifer Patterson, in the registrar's office. She will know how to reach me.

I've got a very successful friend to whom people often say, "Gosh, you're lucky." She always replies, "The harder I work, the luckier I get." May you, too, achieve the success that your hard work merits.

Your client, Ms. Tek, writes computer software. In July of 1995, she obtained a U.S. patent on an algorithm used in her software. Ms. Tek then began selling her software under the unregistered mark "TekHed." She has not registered a copyright in the software or its accompanying manual.

Ms. Tek began by selling the software and manual out of her garage. After encountering unprecedented domestic demand for her software, however, she contracted out the copying and distribution of the software and accompanying manuals to the large, U.S.-based CompCopy Corp. All the software diskettes and manuals she has sold carry the "TekHed" mark, which also appears when a computer runs the software.

In August of 1995, using the services of CompCopy, Ms. Tek began exporting TekHed to retailers in Japan. In September, 1995, Ms. Tek learned that other Japanese retailers had begun importing TekHed from U.S. retailers, who were re-selling TekHed diskettes that they had purchased from Ms. Tek. These U.S. re-sellers offered TekHed at about 1/2 the price that Ms. Tek charged her Japanese retailers.

Why the big difference in price? Because Ms. Tek had to recoup the costs of preparing a Japanese-language version of the TekHed software manual. The U.S. re-sellers sold only the diskettes -- something that Ms. Tek refused to do for fear that Japanese consumers would blame her software for any confusion they suffered in using TekHed. Needless to say, the Japanese retailers with whom Ms. Tek deals do not feel very happy about their competitors selling TekHed at 1/2 off. Although her contracts with these retailers require that they purchase TekHed only from her, a few of them have started carrying diskettes purchased from the U.S. re-sellers.

Write a brief memo describing what (if anything) Ms. Tek can do to prevent these unauthorized resales of her TekHed software, taking care to explain how and why she can (or cannot) do so. While you should certainly discuss the legal principles at issue, do not neglect to consider pragmatic business concerns.

Since you have done such an excellent job of handling Ms. Tek's problems with unauthorized resales of her software, she has returned to you with another, related problem: She has learned that certain parties in China have begun making and selling unauthorized copies of TekHed. Furthermore, these same parties have translated the Japanese manual into Mandarin Chinese, and begun selling it along with their bootleg versions of TekHed.

Write a brief memo describing what (if anything) Ms. Tek can do to stop this unauthorized copying of her software and manuals, taking care to explain how and why she can (or cannot) do so. While you should certainly discuss the legal principles at issue, do not neglect to consider pragmatic business concerns.

(Assume, for the purposes of this question, that China has agreed to the same international conventions relating to intellectual property that the U.S. has -- except for TRIPs and, of course, NAFTA.)

Your treatment of Ms. Tek's problems in China really impressed her. Now she seeks your advice in a related area. Recently she discovered that a Thai computer manufacturer, DigiPack, has begun exporting to the U.S. computers pre-installed with pirated copies of her TekHed software. That is, at least some of the computers come with her software -- others come pre-installed with similar software created by one of Ms. Tek's competitors. Naturally, Ms. Tek wants to stop DigiPack from importing computers carrying unauthorized copies of her software.

Write a brief memo describing what (if anything) Ms. Tek can do to stop the imports, taking care to explain how and why she can (or cannot) do so. While you should certainly discuss the legal principles at issue, do not neglect to consider pragmatic business concerns.

It is the year 2005. U.S. President Bill Gates, long a Francophile, has been considering asking Congress to revamp the U.S. Copyright Act (unchanged since 1996) so that it will better harmonize with similar provisions under French law. He has asked you, as his advisor on international intellectual property, to prepare a brief report on the wisdom of this policy as it relates to moral rights. He specifically asks that you address the following questions:

1) Where U.S. and French law differ, which country has the best approach to moral rights? Take care to justify your conclusions and to address counter-arguments.

2) What sorts of problems, if any, do differences in the ways that the U.S. and France treat moral rights create for international trade?

3) What reform of U.S. law, if any, do you suggest the U.S. undertake to bring it up to speed on moral rights -- and why? (If you do not think that we should change U.S. law, why do you hold this view?)

4) If you propose to reform U.S. law as it relates to moral rights, what sorts of problems might arise from making the transition to the new regime and how would you deal with them? (If you think that we should not change U.S. law regarding moral rights, assume that we can convince the French to make their laws more like ours. What sorts of problems might arise from their transition to this new regime, and how might we might suggest that they deal with those problems?)

As always, Pres. Gates welcomes your insightful commentary on issues related to, but not exactly covered by these questions. Note that you need not advise Pres. Gates on the impact of your proposals on his net worth, because he sold his MicroSoft stock to avoid conflicts of interest -- and to purchase Cuba for the U.S. (neatly resolving decades of diplomatic grief). He does, however, remain interested in seeing the U.S. software industry flourish.

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