Property Outline 2_CCP - I Acquisition by Possession a...

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I. Acquisition by Possession a. Capture : title goes to the first person who captures (not claims) it i. Applied to Animals: “first in time is first in right.” 1. Actual Possession : Must capture or mortally wound, making capture certain. (Pierson) 2. Constructive Possession : same idea, but does not require possession in fact. (Keeble) 3. Custom : that entire industry has been built on the “he who kills the whale, owns it” doctrine testifies to its efficiency (Ghen) ii. Applied to Groundwater 1. Implications : may result in depletion of resources, competition 2. Sipriano : TX allowed rule of capture allowing Ozarka b. Prior Appropriation : title goes to the first person to claim it i. Incentive to find the water, b/c second finder can only contract to sell ii. Less incentive to actually pump the water c. Reasonable Use i. Common Law Rule : consider history, economy, percentage of investment. This is expensive (leave it to legislatures) ii. Restatement Rule : not liable to neighbor unless: 1. causes unreasonable harm by lowering water table 2. exceeds reasonable share 3. affects lake, harming those entitled to use it\ d. Correlative Rights i. Oil Industry : extract in proportion to the amount of ownership ii. Water Industry : extraction allotment cabined by neighbor’s right e. Utilization : pool all resources into one and one buys others out f. Acquisition by Creation g. Intellectual Property Overview i. Patent : granted for useful and non-obvious product or process. It grants absolute legal monopoly for 20 years before becomes public domain. ii. Copyright : granted for tangible expression of any idea, novel or not. Others entitled to “fair use” if it doesn’t undermine market functions. iii. Trademark : granted for images and symbols . Protects prod. identifiers, encourages quality, prevents confusion. Lasts until abandoned iv. Trade Secret : granted for information that has economic value and has been kept secret through reasonable protections . Function of state law. h. Copying i. Courts allow copying where it facilitates competition 1. Cheney Bros. : “ A large expenditure of money does not in itself create legally protectable rights.” Short life span of clothing design makes copying un-copyrighted design less likely to throw the market off. ii. Courts deny copying where it undermines ex ante incentives to invest. 1. INS v. AP : INS engaged in unfair trade practice b/c it used competitor info to secure advantage.
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iii. Modification : variation on a naturally occurring substance can be patented (E.g., insect resistant plants or GM crops) iv. Distillation : non-obvious process that distills an element is patentable (E.g., process for isolating and distilling stem cells) i. Market Inalienability and Personhood j. Body is Not Property i. Moore : P sued for conversion when his removed spleen was used as basis for isolating stem cells. 1.
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This note was uploaded on 04/30/2008 for the course PROPERTY 101 taught by Professor Lew during the Fall '08 term at Florida Coastal School of Law.

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Property Outline 2_CCP - I Acquisition by Possession a...

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