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III. Chapter 8 Property

A. Definitions

1. Property= tangible and intangible items that can be owned

2. Ownership= the right to possess and the right to exclude others from use or possession.

3. Legal Person= a human being or a corporate entity that is recognized as having certain legal rights; in this case to own property.

4. Real property= land/real estate

5. Personal property= property that is not real property.

6. Tangible property = property that is in a physical form.

7. Intangible property= property that does not physically exist but is still subject to ownership principles ie intellectual property that we will cover in Ch. 9.

B. Methods of Acquisition of personal property

1. Production- if you create something you own it.

2. Gift= a voluntary transfer of property. The parties to a gift are a donor and donee. Inheritance is a gift through the donor’s estate.

3. Purchase= method of acquisition of personal property for ownership involving trade of valuable consideration ($).

4. Abandoned property= where the owner has intentionally relinquished the property, a person who finds the property owns it.

5. Lost or mislaid property- if the property is unintentionally relinquished by its owner, the owner can demand it back through a conversion action if necessary.

C. Methods of Acquisition of real property

1. Ownership rights are transferred by title- recording a deed of title places others on notice of property ownership.

2. Purchase

3. Inheritance and gift-

4. Adverse Possession= a method of acquiring ownership of real property of another when the following conditions are met:

a. the possessor must be in actual possession

b. the possession must be open and obvious

c. the possession must be hostile

d. the possession must be continuous

e. the possession must be exclusive

f. the length of time required by state statute must be met – Ohio is 21 years

D. Ownership Interests

1. Fee simple absolute- complete ownership

2. Fee simple defeasible- is subject to a condition

3. Life estate- a granting of real property for the lifetime of the grantee (possessory interest)

E. Duties of Landowners- depends on the status of the person entering their land

1. Trespasser-owner has a duty not to intentionally injure a trespasser

a. Special rule exists for children trespassers- attractive nuisance doctrine requires property owners to protect against things that attract curious children but are dangerous- ie the reason you have a fence around a swimming pool

2. Licensee= someone who has permission to be on the land. Landowner has a duty to warn a licensee of a known defect. ie- landlord has a duty to warn a guest of a tenant of a defective step on the porch.

3. Invitee= someone who has entered real property by invitation. Landowner has a duty to inspect for defects and correct those defects.

F. Special Considerations with real estate

1. You can grant someone subsurface rights

2. You can grant someone an easement which is simply a right to use your land. It is considered a non-possessory interest in real property.

3. Your property may have restrictions on land use- covenants, zoning ordinances, etc.

IV. Chapter 9 Intellectual Property

A. Definition = Intangible property which was created by human ingenuity.

IP has all the properties of personal property. In other words, the owner has the right to exclude others from use or possession.

Infringement= to interfere with someone’s IP rights.

B. Types of IP

1. Patent- covers inventions and processes (drugs, materials, equipment)

2. Trademark- covers words, marks, symbols

3. Copyright- covers creative works of authorship

4. Trade Secret- anything a company wants to keep confidential

C. Source of law= Article I section 8 of the Constitution- says Congress may promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their writings and discoveries.

D. USPTO= the system to protect patents and trademarks through a registration process.

E. Patents-

1. Last for a finite period of time (typically 20 years)

2. The person who holds the patent is a patent holder or patentee.

3. The patent system was historically based on a first to invent rule. If two people invented the same thing whoever can establish being first to invent gets to file the patent. This has been modified in 2013 under the AIA (America Invents Act) that is using a first to file rule. Now whoever files first regardless of who may have invented first, gets first rights to the patent.

4. Some life forms are patentable ie genetically modified plants and animals for research purposes. Humans are not patentable.

5. Process- attorneys who prosecute patents (apply for and advocate for) pass a separate patent bar and must have an engineering or science background. While the application is pending, an inventor can use the term “patent pending” on the invention.

6. Many patent applications for business method patents- ie one-click patent granted to Amazon.com to purchase items on the internet.

7. Licensing- the commercialization of a patented product that allows others to use the invention in a commercial way ie- Amazon licensed the one-click to Apple so Apple can feature this on its websites as well.

8. Compulsory licensing= countries can force a pharmaceutical drug licensing in light of a medical emergency ie antiretroviral drugs licensed to companies to produce generic drugs in the treatment of AIDs patients in Africa.

9. Patent infringement= a violation of a patent holder’s patent.

10. Patent trolls- a patent holding company that solely exists to sue potential infringers.

F. Trade Secrets-

1. last forever

2. are not filed- if they were they would be required to reveal the very secret they hoped to protect.

3. examples- soft drink recipes

4. to protect your trade secret against an infringer, you would file a claim of misappropriation.

5. You can reverse engineer to discover a trade secret (unlike a patent)

6. Uniform Trade Secrets Act (UTSA) is the law that protects trade secrets

G. Trademarks= any logo, mark, word or other characteristic that identifies a particular good or service.