CONFIDENTIAL LML4801

October/November 2024

UNIVERSITY EXAMINATIONS

October/November 2024

LML4801

Patent and Copyright Law

80 Marks
Duration: 4 Hours

First examiner: Prof M du Bois

Second examiner: Prof S Geyer
External examiner: Prof CJ Visser

This paper consists of 8 pages.

Instructions:

1. The examination question paper counts 80 marks.

2. It consists of 8 questions. Answer ALL the questions.

3. The duration of the examination on the timetable is 4 hours.

4. In addition to the duration of the examination indicated on the timetable, you are given 30
minutes to FINALISE the uploading of your exam file. Your exam file must be uploaded via
the myExams platform on 22 October 2024 BEFORE 18:45 (South African Standard Time).

5. This is an open-book examination. You may consult your prescribed study material during
the examination.

6. This examination is proctored via the Invigilator App. You are required to activate (or log in to)
the Invigilator app between 14:00 and 14:45 (South African Standard Time).

The QR code is below:

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YOUR EXAM QR CODE & EXAM

ACCESS CODE

Exam Access Code: c34fa3f6

6.1 You will not be able to submit your script on the Invigilator App.

6.2 You will have 48 hours from the date of your examination to upload your invigilator results from
the Invigilator App. Failure to do so will result in students deemed not to have utilised the
invigilation or proctoring tools.

7. The uploading of your exam file on the myExams platform must be finalised within 30
minutes of the scheduled (timetabled) end of the exam. NB: There is no contingency link
for this exam. Only MyExams submissions will be marked. There is no other way to submit
for marking.

7.1 When ready to submit, open the Take-Home (Assignment) assessment again and click on
the Add Submission button.

7.2. Note the file requirements such as:

a. File size limit.
b. Number of files that can be submitted.
c. File formats allowed.

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7.3. Check the acknowledgment checkbox and upload your answers document and then click on
the Save changes button.

7.4. Review your submission information regarding the status and click on your submission file
link to check if it's correct.

7.5. If you need to resubmit a file, you can click on the Edit Submission button. Do not click on
the Remove submission button. Note: You will need to delete any existing files by clicking
on the file and then on delete.

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7.6 Use proper PDF conversion software to create the final file for upload. Free PDF conversion
software is available on the Internet. As Turnitin is used for this exam, no scanned scripts will
be accepted.

7.7 Add your student number and the module code in the file name. That will assist you to select
the correct document to upload during submission.

7.8 You are advised to preview your submission (answer script) to ensure legibility and that the
correct answer script file has been uploaded.

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

9. As Turnitin is used for this exam, your take-home exam must be typed. Handwritten
submissions will not be accepted. The maximum length is 7 pages (which includes the
cover page and the bibliography). Note the division of marks and use the available space
accordingly.

10. Your submission on the myExams platform on Moodle must be made in the form of one PDF
document. Only the last file uploaded and submitted will be marked.

10.1 The exam answer file that you submit must not be password protected or uploaded as a “read
only” file.

10.2 Your examination answer file will not be marked if:

10.2.1 you send your examination answer file via email.

10.2.2 you submit a handwritten file.
10.2.3 you submit a scanned file.
10.2.4 you have not accepted the Turnitin Eula or circumvented the creation of a Turnitin report in
some other way.
10.2.5 you submit the incorrect examination answer file. A mark of 0% will be awarded.
10.2.6 you submit your exam answer file on an unofficial examination.
10.2.7 you submit your examination answer file in the incorrect file format.
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10.2.8 you submit a password-protected document.

10.2.9 you submit your examination answer file late
10.2.10 you submit your answer file from a registered student account that is not your own.

10.3 The mark awarded for an illegible examination answer file submission will be your final mark.
You will not be allowed to resubmit after the scheduled closing date and time of the exam.

10.4 Listening to audio (music) and utilising audio-to-text software has been strictly prohibited
during your examination session, unless use of the software is related to a student’s assistive
device which has been declared. Listening to music, utilising such software and/or failing to
declare the software is a transgression of Unisa’s examination rules and the student's marks
will be withheld.

11. Ensure that you adhere to the following requirements:

11.1 The text must be typed in Arial font, size 12 with single line spacing within the
paragraph, and double line spacing after the paragraph.
11.2 The text must be justified.
11.3 All of the pages must be numbered in the bottom right hand corner of the page.
11.4 All margins must be 2.5cm, but the left margin must be 3cm.
11.5 South African English and not American English should be used. For example, the
correct spelling is “Labour” and not “Labor”.
11.6 Do not use abbreviations or SMS language.

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

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

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

15. You must complete the online declaration of own work when submitting.

15.1 By ticking the Honesty Declaration, 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.

15.2 Students suspected of dishonest conduct during the examinations will be subjected to
disciplinary processes. Students may not communicate with any other person or request
assistance from any other person during their examinations. The use of Telegram, WhatsApp
or any other instant messaging services with any other person (except when asking for
technical assistance via official channels of the SCSC or the Invigilator WhatsApp line) are
strictly prohibited. Plagiarism is a violation of academic integrity and students who plagiarise,
copy from published works or use Artificial Intelligence Software (eg ChatGPT) will be in
violation of the Policy on Academic Integrity and the Student Disciplinary Code and may be
referred to a disciplinary hearing. Unisa has a zero tolerance for plagiarism and/or any other
forms of academic dishonesty.

15.3 Unless a student is exempted because of disability or incarceration, students who have not
utilised invigilation or proctoring tools will be deemed to have transgressed Unisa’s
examination rules and will have their marks withheld

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PLEASE NOTE:

If you experience challenges with the Invigilator app, please send a WhatsApp message to the
technical helpdesk on 073 505 8273. Do not contact the lecturers.

For all other exam-related challenges, you may contact the SCSC on 080 000 1870 or e-mail
[email protected] or refer to Get-Help for the list of additional contact numbers.

SCENARIO

ABC (Pty) Ltd is a company that develops and manufactures telesurgery robotic
systems. In telesurgery, or remote surgery, surgeons use wireless networks and robotic
systems to operate on patients from a distance. If, for example, you are far from a
hospital – in a remote area, in an aircraft, or even in space – but have access to such a
robotic system, you can be operated on by the robot that is remote-controlled by a human
surgeon.

Telesurgery is dependent on smooth, real-time data transmissions. Even the smallest

time-lag – delays in the live video streaming relayed from the patient to the doctor, or the
doctor’s commands relayed to the robotic system – can have devastating results.
Fortunately, with technology like 5G the future of robotic telesurgery looks bright.

ABC (Pty) Ltd commissioned Jo, a freelance computer programmer, to write a computer
program to monitor and mitigate latency time in the interactive data communication
between the surgeon and the robotic system. ABC had worked with Jo before: they
simply explained what they needed and then left Jo to get the job done. ABC started
marketing the computer program and the systems incorporating it in 2023.

ABC’s employees had spent much time, skill, and effort to develop Standard Operating
Procedures (SOP) for using their systems. Much of what should be contained in such
SOP brochures is prescribed by the state. The brochures are text-only (with no artistic
works) and you can accept that copyright subsists in them. It came to ABC’s attention
that XYZ (Pty) Ltd, ABC’s competitor, is selling one of their (XYZ’s) robotic system with
a substantially improved version of an ABC SOP brochure. ABC writes to XYZ to demand
that they stop infringing ABC’s copyright.

Further, ABC (Pty) Ltd applied for a patent relating to some of its technology in the field
of remote surgery robotic systems, particularly over a patient-side device for a surgical
system. Some of the technology incorporated into this innovation includes Jo’s computer
program. The picture below is just an example of a patient-side device. The claims from
the patent application follow.

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Figure 1: Illustrative picture of a patient-side device for a surgical system from en.wikipedia.org

Claim 1: A patient-side device for a surgical system.

Claim 2: A plurality of manipulator arms, each having an instrument holder capable of
holding a long-axis surgical instrument at the tip, and each having a plurality of degrees
of freedom.
Claim 3: An elongated arm base configured to connect the base ends of each of the
plurality of manipulator arms, base and a positioner having a plurality of links and a
plurality of joints, connecting the base and the arm base, and being configured to hold
the arm base movably.
Claim 4: An operation unit, including a computer program, configured to give an
instruction to move the arm base by the positioner.
Claim 5: A control unit that controls the operation of the positioner, the arm base, and
the plurality of manipulator arms. The positioner is a patient-side device that holds the
arm base in a state where the rotation axis of the first torsion joint is tilted in the vertical
direction and tilted with respect to the horizontal plane at the preparation position. The
patient-side device according to claim 1, wherein the positioner is composed of an
articulated robot having six or more degrees of freedom.
Claim 6: A surgical system comprising an operating device for remotely controlling the
manipulator arm. An accompanying surgical method to optimize the results.

SECTION A: COPYRIGHT

QUESTION 1
When will the copyright in the computer program expire?
[2]
QUESTION 2
Who is likely to be the owner of the copyright in the computer program created by Jo?
[10]
QUESTION 3
Advise XYZ (Pty) Ltd on the validity of ABC’s demand that they (XYZ) stop infringing
ABC’s copyright in the SOP brochure. Biotech Laboratories (Pty) Ltd v Beecham Group
PLC and Another 2002 (4) SA 249 (SCA) must be meaningfully incorporated into your
answer.
[15]

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QUESTION 4
Advise XYZ (Pty) Ltd on the subsistence of copyright in their (XYZ’s) SOP brochure and
what sort of licensing agreement they need to reach with ABC.
[10]
QUESTION 5
Penny, who used to work for ABC (Pty) Ltd, stole technical drawings from her employer.
She then started her own company and used ABC’s drawings to build robots. Penny’s
excuse is that she reverse-engineered the robots (in terms of s 15(3A) of the Copyright
Act 98 of 1978). Is Penny’s defence valid? You can assume that copyright subsists in
the drawings.
[3]
TOTAL FOR SECTION A: 40

SECTION B: PATENTS

QUESTION 6
Is there anything in the scenario or the claims of the patent that might indicate that the
innovation might not qualify as a patentable invention? Is there anything else that may
cause a problem when the registrar considers the patent application? If there is a
problem, can it be remedied, and how?
[10]
QUESTION 7
Now assume that a patent has been granted. XYZ (Pty) Ltd manufactures and sells
patient-side devices that consist of exactly seven manipulator arms, with a positioner
composed of an articulated robot with five degrees of freedom. By reference to case law,
indicate what ABC (Pty) Ltd would need to present before a court to prove infringement
of their patent. Also indicate which remedy or remedies would be suitable if ABC (Pty)
Ltd is successful with the infringement claim.
[20]
QUESTION 8
If XYZ (Pty) Ltd wants to defend against the patent infringement claims of ABC (Pty) Ltd,
which ground(s) might be most likely to succeed? If they also wish to apply for revocation
of ABC (Pty) Ltd’s patent, how would this differ from a defence against infringement?
[10]
TOTAL FOR SECTION B: 40
TOTAL: 80

©
UNISA 2024
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