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LLB EXAMINATION for External Students INTERMEDIATE EXAMINATION (Scheme A) FIRST AND SECOND YEAR EXAMINATIONS (Scheme B) GRADUATE ENTRY LEVEL I (Route A) GRADUATE ENTRY FIRST YEAR (Route B)

BSc DEGREES for External Students MANAGEMENT WITH LAW, LAW WITH MANAGEMENT, ACCOUNTING WITH LAW AND LAW WITH ACCOUNTING FOR STUDENTS IN THE EXTERNAL PROGRAMME

Intellectual Property Thursday 4 June 2009 : 2.30 - 5.45 pm

Candidates will have fifteen minutes during which they may read the paper and make rough notes ONLY in their answer books. They then have the remaining THREE HOURS in which to answer the questions. Candidates should answer FOUR of the following NINE questions. Candidates should answer all parts of a question unless otherwise stated.

University of London 2009 UL09/1021 Page 1 of 5

1.

There is no point in attempting to put forward any sort of arguments to justify intellectual property rights. Human beings are by their nature inventive without being offered any incentive or reward. They would still come up with new creations even if there were no legal protection available. Discuss.

2.

The decisions of the ECJ in recent cases concerning exhaustion of trade mark rights display a reckless disregard of the interests of the consumer. Discuss.

3.

Critically discuss the following in relation to the law of patents: (a) (b) how it is decided whether an invention is novel; how United Kingdom courts have applied the Protocol to Article 69 of the European Patent Convention.

4.

Critically discuss two of the following in relation to the law of copyright: (a) (b) (c) (d) the fair dealing defences to copyright infringement; the requirement of originality; the protection of moral rights; the requirement of substantial taking.

5.

Critically discuss the following in relation to the law of registered trade marks: (a) (b) the requirement of graphic representation; the defences to infringement set out in section 11(2) of the Trade Marks Act 1994.

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6.

VitBric plc is a leading UK manufacturer of soft drinks. In 1998 it registered the word RED as a trade mark in the UK for fruit-flavoured non-alcoholic beverages. For some six years RED drinks proved very successful, but production then ceased due to a problem with contamination at the companys principal bottling plant. Thereafter, only a few batches of the drinks were supplied, these being given to competitors taking part in the Tour of Cornwall cycle race. VitBric has now acquired new premises and is considering re-launching the product. However, before it does so, it consults you as it has been notified of the following trade mark applications which have been advertised in the Trade Marks Journal: (i) REDS for beer; (ii) TAKE IT AS RED for tea; (iii) RED for bleach. Advise VitBric: (a) (b) whether it could oppose any of the above pending applications; and whether it should do so.

7.

Bill is a famous chef whose television programmes emphasise traditional cooking methods and the importance of using healthy, natural ingredients. Last year, Bill wrote a book containing over 100 recipes, entitled Dishes my Grandmother Taught Me. The collection of recipes was arranged systematically, according to the subject-matter of the recipe. Each recipe was accompanied by a photograph showing how the finished dish should look. The photographs were all taken by Bills son, Greg. The recipes in Bills book come from three different sources. Some recipes were created by Bill personally after extensive research into achieving the right mix of ingredients, the right herbs and spices and the right cooking times. Other recipes did indeed come from Bills grandmother, who died in 1999. In the year or so before her death, she had spent a lot of time talking to Bill, telling him about her experiences when she worked as a cook in a large country house in England just before World War II. After their conversations, Bill had made extensive written notes about the recipes she had used. Some of his grandmothers recipes he left unchanged, but he modified others to make them more acceptable to modern readers. Lastly, and because of the need to complete the book on time for his publishers, Bill had taken some of the recipes from an 18th century cookbook written by Mrs Mayson. Bill has now discovered that his rival Alan has brought out a book of recipes called Dishes my Grandmother Taught Me. In particular, Bill is concerned that the order and grouping of the recipes is the same as the arrangement in his book. Further, whilst about half of the recipes appear not to have been copied, the rest are very similar to those in Bills book. Lastly, Alans book contains photographs of each of the finished dishes produced by following Alans recipes. Advise Bill.

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8.

Angus is a junior doctor employed at the South Barsetshire hospital. The hospital is a teaching hospital and so many staff also work in the Faculty of Medicine in the nearby Barsetshire University, a highly regarded research institution. In his spare time Angus has been investigating problems encountered in open heart surgery. Tests have shown that there is a quicker recovery time and fewer complications if the patients blood can be kept cool during the operation. Modern heart-lung machines chill the patients blood but there is the risk of the blood starting to clot below 150 celsius. Angus experiments involved adding various substances to blood to see if they would assist in reducing temperatures whilst at the same time preventing clotting. In the summer of 2008 he discovered that by adding 10 milligrams of Dryoxene, a known substance, to each litre of blood processed by the heart-lung machine, the machine used less energy in keeping the blood cool. From this Angus deduced that Dryoxene possessed certain cooling properties. Further, the risk of clots forming in patients blood was much reduced. By searching various databases on the internet, Angus found the following information: (i) a patent granted in 1998 to Meechams plc for a pharmaceutical preparation, the key ingredient of which is Dryoxene. This product is widely prescribed as a pain-killer for arthritis; an article in the March 1997 issue of American Scientist detailing possible uses for Dryoxene. One suggestion was to use it as an additive to ice-cream, the effect being to enable the product to remain frozen over a longer period of time whilst being transported from supermarket to home freezer; a report in the Independent in January 1991 to the effect that the (then) problem of mild winters in the Alps had been overcome by the practice of combining Dryoxene with distilled water and then mechanically spraying the resultant mixture over existing snow to stop it melting.

(ii)

(iii)

Advise Angus: (a) (b) whether his invention is patentable; and if the invention is patentable, who is entitled to the grant?

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9.

SofasRUs plc is a United Kingdom company specialising in the manufacture and selling of lounge furniture, particularly chairs and sofas made out of leather. In the summer of 2008, the company was approached by Herbie, a world famous Mexican designer. Herbie offered to design a new recliner chair for the company. Initially, SofasRUs was not sure whether it wanted to add another chair to their range of products, but when company staff saw the drawings which Herbie produced they decided to go ahead. The drawings were therefore sent to the companys factory in Chesterfield where a prototype was made. Once the prototype had been tested, the company decided to go ahead with production. The first chairs went on sale in the companys Oxford Street store in London in January 2009, and despite the recession proved to be an instant success, winning critical acclaim from those in the designs industry. One of the key features of Herbies recliner chair is that it has a headrest which is very similar to headrests found in car seats. The headrest can be adjusted to suit the user of the chair. The recliner chair also has folding arms, enabling the user to get out of the chair more easily. These are similar to the folding arms found on the seats in railway carriages. The chair also has a footrest shaped like a dog: when asked about this, Herbie said he drew his inspiration from a royal tomb in Westminster Abbey, where the stone figure of a knight in armour is shown with his feet resting on a pet dog. Lastly, hidden underneath the leather covering the backrest and seat are round, electrically operated pads which enable the user of the chair to have a massage. SofasRUs now seeks your advice as to whether it might have any cause of action under the CDPA in respect of each of the following: (a) (b) (c) (d) a mattress which has round, electrically operated massage pads; a typists chair which has folding arms like those in Herbies design; a dentists chair with an adjustable headrest; a childrens hot-water bottle shaped like a dog.

Advise SofasRUs.

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