Right On Time: A Reply to Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, and Van Houweling
A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could not find was a synthetic treatment that knitted together the accumulated insights in the literature in a comprehensive way, showing how the different parts of the puzzle relate to one another. And so our project grew. The final article sought to accomplish two goals: first, to set out a unified theoretical framework for first possession of the sort that seemed to be missing from the literature and, second, as originally planned, to apply that framework to patent, copyright, and trademark law to show both the similarities and differences with real and tangible property.
Our goals were thus reasonably ambitious, and it is immensely gratifying to have elicited responses from eight leading property and intellectual property scholars, all of whom influenced our own thinking in developing our thesis. We are even more gratified by their kind words about the fruits of our labors. But like them, we are probably more interested in points of departure than in our many areas of agreement. Our attempt to articulate an omnibus account of the dynamics of first possession systems was always going to be vulnerable to charges that some variables deserved greater emphasis than we could give them, and several of the thoughtful responses to our article single out elements of the first possession story for greater attention. These comments have spurred some further thinking on our part and in some cases called attention to aspects of our original article that may need clarification, and we are grateful to the editors of this journal for the chance to add a few additional words to the conversation.
This abstract has been taken from the authors' introductory paragraphs.
100 Boston University Law Review Online 48-56 (2020)
Oliar, Dotan and Stern, James Y., "Right On Time: A Reply to Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, and Van Houweling" (2020). Faculty Publications. 2124.
Written in response to the online symposium "Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property, 99 B.U. L. Rev. 395 (2019)" hosted by Boston University Law Review Online.