Exam (elaborations)
LML4801 Questions and Answers
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- University Of South Africa (Unisa)
LML48o1 exampack. Questions and answers.
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Semester 1 – Assignments 1 & 2Assignment 1
Mr Say Cheese is the owner of Smile-A-While, a photographic studio. Smile-A-While specializes in taking and development of
wedding pictures. One day, while developing a set of pictures, Mr Say Cheese accidentally stumbles on a new combination of
chemicals usually used for the development of photographs. This new combination of chemicals makes the picture quality
infinitely clearer and brighter. Very excited, Mr Say Cheese tells his assistant, Helpe, about this formula. Helpe is an enthusiastic
member of the “Brite Lite” photography club. He sends an email to the club members explaining the wonderful effect of the new
chemical combination.
1. Discuss whether the formula will qualify as an invention for purposes of patent protection. (5)
You had to answer this question by explaining the meaning of “invention”. The act defines the term “invention” as “an invention
for which a patent may be granted under section 25” (sect 1(ix)). Section 25(2) then lists all those things which will not qualify as
an invention for purposes of the Act. You had to list those categories which will NOT qualify as an invention for purposes of the
Act. (See paragraph 2.4.2.1 of the study guide.)
2. Discuss whether the formula will meet the requirement of novelty. (15)
This is a theoretical question. You had to discuss the requirement of novelty. Please note that it is very important to study the
requirements for patent protection, especially the requirements of novelty and inventiveness. You may be asked to discuss both
these requirements as longer questions in the examination. (See paragraph 2.4.2.2 of the study guide.)
3. Discuss whether the formula will meet the requirement of inventiveness. (20)
This is once again a theoretical question where you had to discuss the requirement of inventiveness. (See paragraph 2.4.2.3 of
the study guide.)
4. Mr Cheese has also modified his existing camera enabling it to take digital pictures. Unfortunately the original camera
itself still enjoys patent protection. Advise Mr Say Cheese on whether he will be able to obtain a licence from the patent
holder of the camera to enable him to patent his modification without infringing the existing patent. (10)
The only way an existing patent can be modified by a person other than the patentee without infringing the original patent is
by way of licence. In this case Mr Say Cheese invented a dependent patent. He cannot exploit his modification without
infringing the earlier patent on the original camera. If he is unable to obtain a licence from the patentee of the camera, he
may apply to the commissioner for a licence under that patent. The commissioner will then grant such a license on conditions
he thinks fit. We refer to such a licence as a compulsory license. Section 55 provides that the commissioner can only grant
such a licence if three conditions are met. You had to refer to these three conditions. Remember that the commissioner can
also grant a compulsory license in the case of abuse of patent rights.
Assignment 2
Mr Say Cheese is the owner of Smile-A-While, a photographic studio. Smile-A-While specializes in taking and development of
wedding pictures. One day, while developing a set of pictures, Mr Say Cheese accidentally stumbles on a new combination of
chemicals usually used for the development of photographs. This new combination of chemicals makes the picture quality
infinitely clearer and brighter. Very excited, Mr Say Cheese tells his assistant, Helpe, about this formula. Helpe is an enthusiastic
member of the “Brite Lite” photography club. He sends an email to the club members explaining the wonderful effect of the new
chemical combination. 1 In order to download the pictures taken with the modified camera on a computer hard disk, Mr Say
Cheese developed a computer program. Mr Say Cheese markets his modified camera as well as the accompanying computer
program. After a few months he receives a notice from Mikra Software that his program is very similar to one of Mikra
Software’s and that he should stop marketing his computer program.
1. Discuss whether Mr Say Cheese’s program will still enjoy copyright protection, despite its similarity to the Mikra
Software program. Specifically refer to the requirement of originality. (20)
In order to qualify for copyright protection, the object must first of all fall within one of the categories of works listed in the
Copyright Act. Mr Say Cheese’s computer program will fall under the category of a computer program. In addition it should meet
both the inherent requirements (originality and material embodiment) as well as one of the formal requirements. Students had to
discuss these requirements and apply them to the facts to determine whether the software component will indeed qualify for
copyright protection.
,Students had to refer specifically to the requirement of originality. Students must not confuse the requirement of originality with
infringement. Originality is present once the author has expended sufficient skill and labour. Mr Say Cheese did indeed expend
sufficient skill and labour (notwithstanding the similarity between his and another’s computer program) therefore his computer
program will qualify for copyright protection.
Students often confuse the requirement of originality with infringement. Please study these topics carefully.
2. Mr Say Cheese writes an instruction manual for the modified camera and the accompanying computer program. One
night Helpe copies the manual, rewrites sections of it, and sends it in as an article for The Photographer, a magazine for
photographers. Discuss whether Mr Say Cheese can institute an action against Helpe for copyright infringement. (20)
Copyright is the exclusive right of a copyright owner to perform any of those acts listed in relation to each category of works.
Where a person performs any of these acts without the copyright owner’s authorisation, such a person will infringe the copyright
owner’s copyright directly.
Reproduction and adaptation are two such exclusive rights. Students had to discuss whether Helpe’s reproduction and
adaptation infringes copyright in Mr Say Cheese’s software.
Students also had to discuss the requirements to establish infringement as set out in paragraph 3.11.1 of the study guide.
3. At a national photographic convention Helpe gives a lecture on the modified camera and the accompanying program.
He creates the impression that he created the computer program. Discuss whether Mr Say Cheese will have any
grounds to institute an action against Helpe for
a. the infringement of moral rights; (5)
Here Helpe infringed Mr Say Cheese’s moral rights. Remember that moral rights belongs to the author (Mr Say Cheese in this set
of facts) and not to the copyright owner. Helpe specifically infringed the paternity right of Mr Say Cheese (that is the right to
claim authorship of the work). (See paragraph 3.13.3.1 of the study guide.)
b. breach of trust and confidence. (5)
The action for breach of trust or confidence is essentially a remedy of English law and does not form part of South African law. In
South Africa, the protection of confidential information can be based on breach of contract, or the breach of a fiduciary duty.
Copyright can also play an important role. Confidential information is information that is not known to the general public. Helpe
can accordingly not be held liable in terms of the English remedy for breach of trust or confidence. He can, however, be liable in
terms of South African remedies.
Semester 2 – Assignments 1 & 2
Assignment 1
Pete, a 22-year old student has to mow the lawn every Saturday. Since Pete would rather spend this time with his friends, he
develops an automatic lawnmower. The lawnmower is equipped with embedded censors that can detect and evade objects such
as plants, trees and walls. The lawnmower can therefore cut grass without bumping into any objects on the lawn.
Pete’s father is so impressed with Pete’s lawnmower that he thinks he should patent it. Advise Pete fully with reference to the
relevant South African legislation and case law on the following:
1. Will Pete’s lawnmower be regarded as patentable subject matter? (5)
You had to answer this question by explaining the meaning of “invention”. The Act defines the term “invention” as “an invention
for which a patent may be granted under section 25” (sect 1(ix)). Section 25(2) then lists all those things which will not qualify as
an invention for purposes of the Act.
You had to list those categories which do NOT qualify as an invention for purposes of the Act. (See paragraph 2.4.2.1 of the study
guide.)
2. Does Pete’s lawnmower meet the requirement of inventiveness for patentability? (25)
This is a theoretical question. You had to discuss the requirement of inventiveness. Please note that it is very important to study
the requirements for patent protection, especially the requirements of novelty and inventiveness. You could be asked longer
questions on these two requirements in the examination. (See paragraph 2.4.2.3 of the study guide.)
, 3. Although Pete is interested in patenting his lawnmower, he is not interested in exploiting it commercially because he
does not want to spend his free time doing marketing. He only wants to manufacture 30 lawnmowers for his parents
and a few of his friends and family. He has, however, heard that he could be forced to grant licences for his patent once
it is registered. Explain fully to Pete what a licence is and the circumstances under which he could be forced to grant a
licence. (20)
Where a patentee gives others permission to make, use, exercise, or dispose of his invention, he or she does so in terms of a
licence. Where the patentee voluntarily gives permission, we speak of a voluntary licence.
In this question students were, however, required to discuss compulsory licences. There are two instances where the
commissioner may grant compulsory licences for the exploitation of a patented invention, namely dependent patents and abuse
of rights. (See 2.4.7.2 of the study guide.)
Syntheta (Pty) Ltd (formerly Delta G Scientific (Pty) Ltd) v Janssen Pharmaceutica NV 1999 (1) SA 85 (SCA) is an important
decision with regard to compulsory licences. You should have read and appropriately referred to this case in your answer to
Question (b) as it is one of your prescribed cases .
Even in the case of more theoretical questions, such as Question (b), you are still expected to apply the relevant legal principles to
the factual situation provided – as far as reasonably possible. For instance, in stead of simply repeating the principles as you have
found it in the Act, study guide and other sources, imagine that you are really talking to Pete. For example, in stead of saying:
‘Section 56(2) provides that patent rights are deemed to be abused if the demand for the patented article in the Republic is not
being met to an adequate extent and on reasonable terms’,
rather say:
‘Section 56(s) provides that your (Pete’s) patent rights will be deemed be abused if the demand for the automatic lawnmower in
South Africa is not being met to an adequate extent and on reasonable terms. Therefore, if you manufacture only 30 of the
patented lawnmowers, of which you give/sell e.g. 15 to your family and friends, and sell the remaining 15 at an extravagant
price, while just about every person with a garden wants to buy one, it is very likely that you will be deemed to have abused your
rights’.
Assignment 2
Lizz Tredoux, a South African born actress, became world famous after receiving an Oscar for best leading actress in the movie
Hot Lips. Lizz attracted a lot of public interest and wide media coverage. Her celebrity status and the pressure of constant public
exposure became too stressful for her to handle and she had a nervous breakdown on the set of a new film she was working on.
Her nervous breakdown was covered extensively by the media. While in hospital Lizz kept a diary, writing down all her
experiences in hospital as well as all her emotions. One night, while she is fast asleep, a nurse steals Lizz’s diary and sells it to
Whisper, a weekly magazine. The editor of Whisper realises that if he publishes extracts of the diary entries, with extracts from
the reviews of Lizz’s performance in the film, still photographs of Hot Lips as well as interviews and photographs of Lizz and her
co-stars of Hot Lips in the form of a book, it will be a best seller. The reviews of Hot Lips and the interviews and photographs of
Lizz and her co-stars were taken and written by photographers and journalists working for Whisper.
The editor of Whisper approaches you for legal advice.
1. Does copyright subsist in the diary? (10)
In order to qualify for copyright protection, the object must first of all fall within one of the categories of works listed in the
Copyright Act. In addition it should meet both the inherent requirements (originality and material embodiment) as well as one of
the formal requirements. Students had to discuss these requirements and apply them to the facts to determine whether the diary
will indeed qualify for copyright protection.
2. Who will be the author and copyright owner of each of the copyright works concerned? (10)
Here students had to identify the different categories of works, as well as the author and copyright owner of each work. It is very
important to give reasons why a specific person would qualify as author and/or copyright owner.
The diary, reviews and book qualify as literary works and the author of each will be the person who created it. The authors of the
photographs will be the photographers employed by Whisper because they were responsible for the composition thereof. The
copyright owner of the diary will be Lizz because of the general rule that the author is the first owner of the copyright in a work.
The copyright owner of the reviews and photographs will be the proprietor of the newspaper for the purpose of publication of a
literary or artistic work in a newspaper, magazine or similar periodical. The copyright owner of the book will be the editor of
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