CONFIDENTIAL LML4801

JUNE/JULY 2021

UNIVERSITY EXAMINATIONS

June/July 2021

LML4801

Patent and Copyright Law

80 Marks
Duration 24 Hours

First examiner: Prof S Geyer

Second examiner: Prof M du Bois
External examiner: Prof APS van der Merwe

This paper consists of 9 pages.

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE

ANSWERING THE EXAMINATION QUESTIONS.

1. The examination question paper counts 80 marks.

2. It consists of 9 questions. Answer ALL of the questions.

3. The duration of the examination is 24 hours. Your answers must be submitted via myExams
platform on 15 July 2021 on or before 12:15 (South African Standard Time).

4. This is an open-book examination.

5. Your answer to this take-home examination must be submitted online on the myExams
platform.

5.1 Access myExams at https://myexams.ac.za/portal and login using your student number and
myUnisa password.

5.2 Go to your specific examination site through the site tabs on the horizontal navigation bar.
Also check your Sites link in the top right-hand corner if you do not find the site on the
horizontal navigation bar.

5.3 Once the site has loaded, select the eAssessment tool from the left-navigation menu

5.4 The list of all available assessments in the site will be displayed.

5.5 Select the assessment for which you want to upload the examination answer file by clicking
on the title of the assessment in the list. A new page will open.

5.6 Submit your examination answer file.

Open Rubric
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Depending on the assessment criteria, you may be allowed to attach a file or perhaps
multiple files.

Under Attachments, click the Choose File button to browse for a file on your device.

Once you have attached your answer file, the name of the file, as well as the file size and
upload time stamp will be displayed under Attachments.

Tip: You may click Remove to remove the attachment if you selected the wrong file.

Tip: Select the honour pledge. Students MUST check the honour pledge before submission
if it appears on the screen. A student will not be able to submit the assessment if he/she did
not check the honour pledge.

When you are ready and satisfied that you have correct answer file, click the Submit button
to complete your assessment submission.

Tip: If you are not yet ready to submit, you may click Preview to preview the submission, or
Save Draft to save your submission and submit it later. Click Cancel to exit the assessment
without saving or submitting.

5.7 Submission confirmation

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Once you have submitted your assessment, you will receive a confirmation message on the
screen. Make a screen copy for your records. In addition, if you have opted to receive
email notifications, you will also receive an email confirmation of your submission.

6. The cover page to your take-home exam must include your name, student number and the
module code.

7. It is preferred that your take-home exam is typed, however, handwritten submissions will also
be accepted. If the take-home exam is typed, the maximum length is 4 pages (which excludes
the cover page and the bibliography). That means you should answer a five-mark question in
about a quarter (¼) of a page, a 10-mark question in about half (½) a page and a 20-mark
question in about one (1) page. If the take-home exam is handwritten, the maximum length is
5 pages (which excludes the cover page and the bibliography).

8. Whether your answers are typed or handwritten, your submission on the myExams platform
must be made in the form of one PDF document.

9. If your answers are typed, ensure that the following requirements are adhered to. The last four
(4) items on the list apply to written assignments as well.
• The text must be typed in Arial font, size 12 with single line spacing within the paragraph,
and double line spacing after the paragraph.
• The text must be justified.
• All of the pages must be numbered in the bottom right hand corner of the page.
• All margins must be 2.5cm, but the left margin must be 3cm.
• South African English and not American English should be used. For example, the correct
spelling is “Labour” and not “Labor”.
• Do not use abbreviations or SMS language.

10. Accurate answers are required. You must show that you can identify the relevant legal
principles and apply it to the scenario. State your conclusions and refer to relevant sources to
substantiate your answer.

11. Do not copy from any source. Use your own words and acknowledge your sources.

12. There is no room in this exam for long quotations. We cannot give you marks for someone
else’s work. Use your own words.

13. By ticking the Honour Pledge, you confirm that you have read (i) the University’s Policy on
Copyright Infringement and Plagiarism and the Student Disciplinary Code, which are both
available on myUnisa: www.unisa.ac.za/unisarules, and (ii) the information relating to student
values and plagiarism that is found at https://www.unisa.ac.za/sites/myunisa/default/Study-@-
Unisa/Student-values-and-rules.

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PLEASE NOTE:
If you experience technical problems of any kind on the day of the examination and your examination
answers are not submitted by the cut-off time, if you are an
(i) Early Completion Student (ECP) student, you will automatically be transferred to the September-
November examination period; or
(ii) aegrotat or supplementary student, you will be marked as absent.

SECTION A: COPYRIGHT

Letladi, Rian and Cindy have known each other for quite some time. Letladi is employed
as a teacher at XYZ private school, Rian has his own clothing business and Cindy is a
social worker who works for the Government. Rian also has a contract with XYZ to coach
the XYZ under-11 cricket and soccer teams.

These three friends are very worried about bullying at XYZ private school and other
schools and decide to start an anti-bullying support group. Letladi advertises the group
meetings at the XYZ private school. The meetings take place once a week in the
cafeteria at Rian’s business and are free of charge. Rian’s shop is within walking
distance from the XYZ private school, so most of the attendees are from the XYZ private
school, but there are kids from other schools as well. The sessions are facilitated by
Cindy, supported by Letladi and Rian.

The support group meetings take place on Thursdays at 16:00. Weekly, on Monday
afternoon, Cindy sends Letladi and Rian a voice note explaining the theme for the next
Thursday’s session. The voice message is typically about three minutes long. Based on
this, Letladi then drafts a lesson plan for the meeting and e-mails it to Cindy and Rian for
their input. Early on Wednesday mornings they meet on zoom to discuss that week’s
plan. Both Cindy and Letladi appreciate how Rian’s creative ideas take the planning to
a next level.

It takes Letladi, Rian and Cindy about three hours each per week to prepare for the
support group meeting. By Wednesday afternoons Letladi sends an e-mail to Rian and
Cindy with the consolidated lesson plan for Thursday’s meeting attached. None of the
team members’ names are mentioned on the lesson plans. Letladi also copies her
supervisor at XYZ private school on the e-mail.

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Learners find the weekly anti-bullying group sessions meaningful and XYZ private school
presents Letladi with a special award for contributing to learner wellness at the school.
It is not long before other schools, organisations and individuals also become interested
in the notes, which raises copyright questions. Letladi and the management of XYZ
private school want to commercialise the lesson plans. Rian and Cindy feel that it should
be freely available to anyone who would like to use it.

You can accept that copyright subsist in the lesson plans for the anti-bullying support
group meetings.

Answer questions 1-5 with reference to the facts provided in the scenario:

Question 1
Identify the author/s of the lesson plan. State the name/s and provide a comprehensive
explanation for your answer. [10] (+ ½ page)

Question 2
Identify the owner/s of the copyright in the lesson plan. State the name/s and briefly
explain your answer. [5] (+¼ page)

Question 3
State for how long the copyright in these lesson plans subsists. [3] (+ 3 lines)

Question 4
An organisation in the United States of America, PQR, adapts XYZ private school’s notes
for their own use. PQR says that the South African copyright act is territorial, does not
apply to them, and that PQR is, therefore, free to use the works of South African authors
as they please. Explain whether PQR’s arguments hold merit. [5] (+¼ page)

Question 5
Letladi’s supervisor has been forwarding the group session notes to her friend Marie.
Marie is the owner of a business that provides soft skills training. Marie adapted the
notes that were created for the children’s anti-bullying sessions to facilitate anti-bullying
workshops in the corporate space. For a substantial fee, businesses can subscribe to
her website, and download the manual with Marie’s adult group lesson plans for use in
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their own businesses.

5.1 With reference to the facts provided, explain whether Marie is infringing on the
lesson plans created for the children in the XYZ private school neighbourhood.
(5)
5.2 Indicate whether Marie has her own copyright in this manual. (5)
[10] (+ ½ page)

Question 6
Rian designs an evening dress for a client participating in the Miss Multiverse
competition. Assume that copyright subsists in the dress. A Johannesburg retail
manufacturer, ABC, reproduces the dress from a photo taken at the event. ABC says
their action is excused in terms of section 15(3A) of the Copyright Act 98 of 1978. Explain
whether section 15(3A) of the Copyright Act 98 of 1978 can be raised as a valid defense
in these circumstances. [7] (+ ½ page)

Total for SECTION A: [40]

SECTION B: PATENTS

Question 7
JT International SA applied for a patent, 2021/01562, for cigarette packaging, with the
following abstract:

‘Packaging comprising a container for holding one or more consumer goods, a lid
hingedly connected to the container, and a flap hingedly connected to the
container, the flap comprising a holding portion for holding one or more items.
Blank system for forming the packaging and method of forming the packaging.’

The picture below is merely a rendering of the kind of package that this patent
specification could have intended.

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The South African legislator decides to implement plain packaging legislation for tobacco
products in the interest of health. While this legislation mainly impacts trademark rights,
in that tobacco proprietors are mandated to use drab packaging colours and a prescribed
font for their trademark names, it also has implications for patents such as the one
outlined above. The relevant section of the plain packaging legislation states as follows
regarding cigarette packs:

‘(2) A cigarette pack must comply with the following requirements:

(a) the pack must be rigid and made of cardboard, and only cardboard (subject to
paragraphs (1)(b) and (3)(d));
(b) when the pack is closed:
(i) each outer surface of the pack or carton must be rectangular; and
(ii) the surfaces of the pack or carton must meet at firm 90-degree angles;
(c) all edges of the pack or carton must be rigid, straight and not rounded,
bevelled or otherwise shaped or embellished in any way, other than as
permitted by the regulations.
(3) A cigarette pack must comply with the following requirements:
(a) the dimensions of the pack must comply with the requirements prescribed by
the regulations;
(b) the only opening to the pack must be a flip-top lid which must:
(i) be hinged only at the back of the pack; and
(ii) have straight edges;
and neither the lid, nor the edges of the lid, may be rounded, bevelled or
otherwise shaped or embellished in any way;
(c) the inside lip of the cigarette pack must have straight edges, other than
corners which may be rounded, and neither the lip, nor the edges of the lip,
may be bevelled or otherwise shaped or embellished in any way;
(d) if the pack contains lining—the lining of the pack must be made only of foil
backed with paper, or any other material prescribed by the regulations.’

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Do a full constitutional property analysis of this section of the legislation. In addition,

provide an opinion as to the constitutionality of the legislation in so far as it may impact
patent rights.
[10] (+ ½ page)

Question 8
James is the inventor of a composition for treating HIV/AIDS in humans, in respect of
which patent application 161/05 (accompanied by a complete specification) was filed by
him in South Africa on 20 January 2005. The patent was granted in due course. The
active ingredient of the composition was not new at the time of filing the patent
application, since it had been used fairly generally prior to that date as an ingredient in
a certain appetite depressant. The use of the ingredient for treating HIV/AIDS, however,
was not known before 20 January 2005.

During 2019, James became aware that Kagiso had commenced experimental work with
a view to manufacturing a similar composition which falls within the scope of James’
patent. James also found out that Kagiso had lodged an application in terms of the
Medicines and Related Substances Control Act 101 of 1965 for the registration of his
composition, to enable him (Kagiso) to commence selling his similar composition once
James’ patent had lapsed. (This Act requires that a registration be effected before a
medicinal substance may be sold to the public.)

On being approached by James with a request to desist from infringing James’ patent,
Kagiso informs James that –
(i) the patent 161/05 is invalid for lack of patentable subject matter and lack of
novelty;
(ii) the experimental work carried out by him (Kagiso) does not constitute
infringement of the patent in terms of section 45 of the Patents Act 57 of 1978;
(iii) even if such experimental work did constitute infringement, James did not suffer
any damage as a result of that; and
(iv) since he (Kagiso) does not intend to commence selling the composition until after
James’ patent has lapsed, James has no cause of action against him.

James approaches you for legal advice. He wishes to know whether any of Kagiso’s
arguments hold merit, and whether he will succeed with proceedings against Kagiso
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seeking –
(a) an interdict to prohibit Kagiso from making and selling the composition;
(b) an order for delivery up of the experimental material and the registration certificate
issued to Kagiso in terms of the Medicines and Related Substances Control Act;
and
(c) damages.

Advise James with reference to relevant statutory provisions and case law.
[20] (+ 1 page)

Question 9
Alistair invents a process and system for converting carbon material into power and
applies for a patent titled ‘Process and system for converting waste plastic into power’,
which is granted on 13 May 2018. The invention works in the following way: Carbon
material is gasified into synthesis gas in a gasifier, and steam is supplied to the gasifier.
The synthesis gas is supplied to a gas turbine to produce power. Air is added to the
synthesis gas prior to the gas turbine. Exhaust gas from the gas turbine is cooled in a
first cooling device with water to produce steam. The steam is used in at least one steam
turbine to produce power and the steam from at least one steam turbine is recycled to
the gasifier. By 15 May 2021, Alistair has not yet put the patent into operation or granted
any rights for third parties to use the process.

One of the managers of the Tshwane municipality procurement team becomes aware of
this patent and decides that the municipality could really use something like this in order
to make the plastic recycling and disposal system more efficient and environmentally
friendly, and boost power supply at the same time. The manager contacts the patent
holder in order to discuss using the patented process. Advise the manager as to the kind
of questions that should be asked, and the kind of licenses that may be considered in
order to facilitate use of the patented process.
[10] (+ ½ page)
Total for SECTION B: [40]
TOTAL: [80]

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UNISA 2021
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