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When there are multiple conditions on a conveyance, go through all of the levels and change the interest that

each person possesses. Rule Against Perpetuities Works on: contingent remainders, executory interests, and vested remainders subject to open Is it possible for the future interest to vest more than 21 years after the death of all the people alive at the conveyance? o Convey, Create, Kill, Count years to see if it violates Implied Lives in being (only if they are alive) If it violates, strike the offending phrase Recording Acts Race States: Person who records first wins (unless they are at fault too) Notice States: SP beats EP only if SP did not have notice of EP. Protects the SP even if the EP comes after the property later by recording. o Notice is what a reasonable title search would show o O to A; O to B (no notice); A records; B records; B wins because they didnt have notice at the sale o O to A; O to B (no notice); B records; A records; B wins b/c no notice at sale Race-Notice: SP prevails over unrecorded interest only if (1) had no notice prior to conveyance, and (2) records before EP does. o O to A; O to B (no notice); A records; B records; A wins b/c B did not record before A (prong 2) How to search: buyer looks for seller in grantee index, then takes that seller and finds them as the buyer. Repeat this until far enough back. Then take first seller and look where he sells it (didnt sell it before he sold it to the grantor you hope. Sabo: Wild Deed recorded too early: O to A; A records; T to O; O to B; B records; B v A B wins. A should have seen that O did not own it. B wins in all regimes (race b/c A at fault; notice b/c he had no notice (he wouldnt have seen conveyance in search); race-notice b/c had no notice Wild Deed too late: O to A; A to B; B Records; O to Z; Z records; A records O to A Z wins in all cases b/c this is a wild deed too late. Z would not find A to B in a diligent title search, so not bound by it (PDF) o O to A; O to X; X records; A records; X to Z Z v A Z wins all b/c wild deed too late Not Bona fide Purchaser: O to A; O to X; A records; X records; X to Z A v Z: A wins b/c Z will find O to A in the grantor-grantee index and should know it is not a BFP Shelter Doctrine (no notice purchase before you protects you): O to A; O to X; X records; A records; X to C, C knows about O to A; C vs. A with shelter C wins all Introduction What is a property right: o Legally protected interest or something more nebulous and just? o Rigid rules (certainty) vs. flexible standards (fairness) o Property is Relational/Relative (INS v AP): who can you exclude, and from doing what? o Bundle of Sticks: exclude, transfer, sell, devise, destroy, use/occupy Convey: You can only sell what you had (if you buy from a dealer innocently, do you have rights?) Property: Legally protected interest Non-Property: We dont legally protect it New Property: There are certain minimum things we are entitled to (so the government cannot take them) o Currently nothing in here should we add something (healthcare, wealth, education, clean air, etc) o This is government imposed totalitarianism What are the sources of Property?

Labor: if you put in the work, you should get it o Pierson v Post Dissent: Labor should be rewarded when it is sufficient to create a right Custom of hunters has value o INS v AP: Labor gives a right to something that isnt normally property to protect its value o POLICY: Bright lines of others (e.g. possession) v fairness/policy goals of labor Possession: o Pearson v Post: Possession creates a property interest (Clear; cost is violence & unfairness) Mortally wounded the property is enough (short of sole possession requirement) o Popov v Hayashi: Pre-possessory right o POLICY: Certainty is better than fairness in some cases Creation o INS v AP: Labor can create a property right (in this case for as long as the news is fresh against competitors only) Dissent: No copyright, no property right; legislature should make these kinds of decisions Conquest: discovery + Possession = property right o Johnson v McIntosh: Marshall what is important here is that the law be settled Fairness loses to certainty Property is a legal right, no abstract justice; we can only recognize the laws of this nation (so Indians couldnt have owned it under their laws; not a legal right we recognize) Find o Lost: accidentally misplaced; Mislaid: Left somewhere with intent to return but forgot; abandoned: voluntary intent to abandon property right Many states got rid of these distinctions; finder has to report to police and wait Finder wins lost/mislaid rights over all but owner; abandoned rights over everyone What is a shipwreck: lost or abandoned (key question is intent of owner) o Landowners Rights to Found Property that is abandoned: Trespassing Finder: may have rights, but landowner will have superior right as it was on his land; some courts give no rights to those who acquire property illegally though Permissive Finder in Private Home: Homeowner usually gets it Public Place, Permissive Finder: some courts say finder, others landowner Embedded Property: Courts usually give it to the landowner, not the finder. Traditional Treasure Rule: Finder gets property no matter where he found it Modern: If finder was trespassing, he does not get to keep it (landowner does) o Charier v Bell: Burial Items are not abandoned because there is no intent to relinquish An ownership right can be limited (even on ones own property) Adverse Possession o Elements: actual, open and notorious, exclusive, continuous, adverse/hostile, for statutory period Nome v Fagerstrom: As an actual owner would use or possess it Look for a period of years property is being used and ouster Intent: some states require either intent to take it or clear conscious Color of Title: Some states require you to have color of title to win o Policy: max utilization and certainty vs. land pirates and certainty of keeping land Unjust enrichment v forced sale (Somerville): make sloppy improver clear or force landowner to pay? Other: abstract justice/natural law; law as an instrument theory (what rule gets us to the goal better?)8


Nuisance: unreasonable activity that substantially harms anothers use and quiet enjoyment o (1) What is the harm to the plaintiff; (2) What is the social benefit of the plaintiffs activity; (3) What is the social benefit of the defendants activity; (4) What are the alternatives; (5) Sometimes: what is the motive; (6) frequently: Who got there first? o Armstrong: General balancing rules (screw the rules and ask what is reasonable) (subdivision) o Fountainbleau Hotel: Bright line rule no right to air or light Coase Theorem: Absent transaction costs, parties will negotiate the most efficient outcome as long as their rights are clearly defined (no matter what they are defined as) o Counter: Fairness, justice, bargaining power, externalities

Non-Possessory Interest (Servitude) License: Positive right to do something on someones land; Informal, and revocable at will Easement: Positive right* to do something on anothers land; formal and permanent (attach to land) o Negative Easements are disfavored because of the dead hand o Easement Appurtenant: runs with and is attached to the land o Easement in Gross: attached to a person (usually not transferrable) o Talk about al 5 kinds no matter what the question is o Express Easement: subject to the statute of frauds, IDs the grantor/grantee, contains intention to create easement, describes the affected land, and singed by grantor o Easement by Estoppel (Implied): Holbrook: reasonably relied on license and made monetary improvements (road, structure, etc); other party knew it was happening o Prescriptive Easement (Implied): Adverse Possession (use = possession; not exclusive); Community Feed Store place for customers to park and turn around o Implied from Prior Use: By Grant (should have been in land you were granted): (1) previous joint ownership, (2) necessary for quiet enjoyment, (3) apparent, and (4) continuous and obvious use at severance General standard is reasonable necessity (vs. strict) By Reserve (should have kept land you granted): (1) previous common ownership, (2) common owner used land in question for use of reserved land, (3) use was apparent, obvious, continuous, and permanent, and (4) necessity (more strict version); Granite Properties: unless contrary intent, conveyance comes with all land; use most show intent not to convey o Necessity (Implied): STRICT necessity; land-locked (from formerly joint owner); e.g. Finn Covenants o Negative* right not to do something on your land (you promised not to); VERY formal; contract right (not property) so violation is money damages o Elements: (1) in writing, (2) intent to bind successors (look for heirs and assigns), (3) touches and concerns two pieces of land, (4) horizontal privity (when covenant was created it was conveyed from common ownership to people in same estate (grantee-grantor privity) or parties share legal interest in land); must be IN written conveyance of land), (5) vertical privity (some states dont require this for benefit to run), and (6) notice o Whitinsville Plaza (CVS): Non-compete touches and concerns o Check to make sure the restraint on alienation doesnt void the covenant o Modifying/Terminating Covenants: Changed Conditions: Strict test benefits of covenant no longer reasonable/enjoyable El Di: Anti-alcohol covenant no-longer reasonable in party town Relative Hardship: Harm is considerably greater than benefit Acquiescence, Abandonment or Unclean Hands: allowed these violations, allowed others to

violate it, or violated it himself may lead to termination Estoppel (promise that induces reliance), laches (ignored covenant for a long time), marketable title act (state law: must re-record or lose), sunset language in writing, merger, release (both parties agree), Equitable Servitudes o Negative* right not to do a thing on your land (promised in equity); formal; injunction for damages o Elements: (1) in writing, (2) intent to bind successors (look for heirs and assigns), (3) touches and concerns two pieces of land, (4) notice (might be more); no privity considered Sanborn (gas station): Though their deed didnt have it, they were on constructive notice Riley (snow tunnel): No actual notice = no ES; Dissent: bought knowing of plan = notice o Check to make sure the restraint on alienation doesnt void the ES o Modifying and Destroying: See section in covenants

Right to Exclude: Fundamental Right in Property, but it is not absolute (limits in 5th and 14th amendments) Federal Constitution is the floor; states can give more rights o Uston: (extreme) While owners normally have the right to exclude for any reason, when they open their doors to the public, that right is limited (and they need a good reason to exclude) Most states dont go this far, and allow business to exclude so long as they dont conflict with federal law. Property Rights Serve Human Values; They can extend a greater right to access o State v Shack (narrow): government/charity works have right to help migrant workers Broad: Property rights serve human values; people can come onto land to serve the human interests of people on that land Holding yourself open to public can make your public (and limit your right due to expectations and fairness) o Common carriers: people depend on you, so higher standard o NJ Coalition: The more an owner opens his property to the public (and it looks like a public space), the more it is treated as one; balance speech rights against property rights (low since open) NJ extends rights that the Constitution does not (thats okay); doesnt have to Federal Statute can extend a public right of access o Fed Civ Rights Act 1964: all persons shall have full access to public accommodation without discrimination due to color, race, religion or national origin Does no apply to private places; what is private v public? Hard to say What about gay people? Not protected under act, so is the place open to public enough? Even extend right has limits o This right to public access can, in turn, run into other parts of the constitution: 4th (your home); 5th (cant be deprived of property w/out due process); 1st amendment (religion-can we turn people away because of requirements-and sex-can a gym say no men) o Youre right to access an area at some point violates my right of free association (1st) Restraints on Alienability POLICY: Owner desire v. alienability and efficiency (dead hand) Modern Reasonableness: Modern reasonableness test on covenants that restrain FSA alienation Racially Restrictive Covenants: Unenforceable under Civil Rights Act of 1964 (K invalid by statute) o Private conduct still okay, but cannot get state involved or be too public o Shelly: State enforcement of racist covenant violated 14th amendment; cant do it Direct Restraint: Look for 100% consent or infinite in duration

o Horsepond: Could not sell w/out 100% agreement and dissolve of club; invalid Grantor Consent to Sell: Look for strange consent, no reasonableness, infinite duration o NW Real Estate: Any consent to sell is repugnant to fee simple and invalid o Riste v Bible Camp: Consent to sell and religious covenant are invalid Pre-Emptive Rights: If they seek to buy, they dont really restrain alienation (they just act as the buyer instead) (East Slope Investment Corp) o Wolinsky: Apt complex board can exercise first right of refusal; had fiduciary relationship b/c buyer was also in the complex already (violated this) Restrictions on Leasing: May be valid (there is a reasonable requirement in commercial leases, but not residential); Condo association may have even greater right (Woodside-could have basic ban on leasing b/c a condo association is a different animal) Restraints on Marriage: o On ANY First Marriage: invalid, unless the goal is to provide support if it doesnt happen Lewis: Dont get property unless you are single was support not restraint, so its okay o On SOME First Marriages: valid only if it does limit chance to marry (e.g. religious criteria ok) o On Remarriage: Valid only if (1) transferee is the spouse of transferor, and (2) it is reasonable

Landlord Tenant Tenancies: Residential and commercial (analytical diff.); term of years, period tenancy, tenancy at will, and tenancy at sufferance (holdover) How to End a Lease: Surrender (both parties agree), o Tenant Abandonment: Landlord can (1) sue for rent, (2) accept and it becomes surrender, or (3) relet and sue for back-payment; some places have a duty to mitigate rent loss Sommer: LL duty to mitigate by re-renting; only for residential (do we want to extend?) o Tenant Refuses to Leave: Landlord can (1) sue for possession and back rent, (2) renew tenancy (may bind to new term of old length or new month-to-month; LL can deny payment), (3) self-help (rarely allowed), and (4) summary process in court (expedited hearing) Landlords Rights: tenant must keep in good repair (tenant can be liable to 3rd parties); if lease is silent tenant must repair land (if it is destroyed, lease remains), but most are not silent and let tenant out if destroyed; reversion; collect rent o College Block: Rent was tied to profits, so there was covenant of continued operation (no min.) Occupancy: Landlord has duty to deliver; traditional: only has to deliver the right to it Sublease and Assignment: A party may transfer what he has; some leases say otherwise: o Silent Lease: Tenant can transfer without consulting landlord; is still liable for rent, etc Assignment: Can swap new-tenant for self and be free of liability; requires consent? Covenants: Can be enforced as equitable servitudes if there was notice against sub-tenant All 4 elements are met (no privity); covenant to pay rent? Some places but maybe not Cannot sue sub-tenant for rent; can sue sub-tenant for possession o Requires LL Consent: Reasonableness is required in commercial (Kendall) extend to residential? o Lease Forbids: Courts generally enforce this Habitability and Quiet Enjoyment by Tenants o Implied Warrantee of Habitability (Javins-DC case establishing WoH; rental is for a place to live) Implied in all leases; from the housing code or fit for human habitation; cant be waived Remedies: (1) Stay with withhold rent, (2) pay for repair and deduct from rent, (3) pay rent and sue for damages, (4) sue for injunction on LL, or (5) sue for criminal charges Condition must be sufficient that reasonable tenant would leave or sue; unfit for human

habitation (no A/C-maybe; broken windows, locks, insects, etc-yes; peeling paint-no) Doesnt apply to commercial leases for now o Implied Warrantee of Quiet Enjoyment: In every lease (LL will not disturb tenant) LL may have to ensure others in its control dont either (Blackett-LL entered K knowing it would disturb his current tenants) Constructive Eviction: A place is so bad tenant cannot be there anymore (hard to show) Elements: (1) substantial interference with use and enjoyment, (2) notice to LL, (3) you leave within reasonable period after telling landlord o Minjack: Partial Constructive Eviction and they dont leave; Required only more than an insignificant interference Waste: Tenants (including life tenants have an obligation to avoid waste) o Voluntary or Affirmative Waste: Done on purpose by action o Permissive Waste: Waste that comes from not taking care of property o Ameliorative Waste: Cannot enhance the property unless future interest holders consent

Takings: Nor shall property be taken for public use without just compensation (from 5th; extended by 14th) Taken: Can be an actual taking or a regulatory taking; You want money for your taken property o Penn Coal (1922): Balance the taking goal & the property interest; taking, as here, when go too far Miller (1928): Tree Case; balance allows this law o Penn Central (Current 78): No taking of Penn Station; Taking requires a balance of factors Economic Impact of the regulation on the claimant Extent to which the regulation interferes with the claimants investment-backed expectations The character of the governments actions (e.g. regulation or physical occupation) Lucas (Scalia): Bright line exception to balancing requirement of Penn Central: deprivation of economic value is taking; exception to that gov. must prove prohibited use would violate the traditional notions of property in the state (i.e. use not in bundle of sticks) Tahoe (2007): Reaffirms Penn Cen; only a 100% deprivation of value triggers Lucas, otherwise we get into ad hoc balancing using Penn Central test Public Use: This is not public use, so you cannot take my land o Kelo: Public use is defined as public purpose (land can go to private parties if used for a public purpose, here making money and creating jobs). TEST: Is there a carefully considered plan? Thomas Dissent (and 41 state laws): Public use means the public is using it OConner Dissent: Transfer to private is only ok if property is doing damage (blighted) Kennedy: Wants to see the plan and have the court consider it Just Compensation: You didnt pay me enough for your taking o You get paid for the things of value that the government is taking; you do not get paid for the value of your business because even if you have to move the government is not taking that from you Fair Market Value: What you get paid Expectation: Usually not compensated; Alamota got paid for the value of his buildings on the land (he lost the expectation that he could renew his 10-year lease) Real Estate Transactions General Notes on Real estate o Most deeds are now signed without a lawyer (some brokers can help under state law) o Brokers take a percentage of the sale and rep the seller (some hire buyers brokers) o Sales Contract: Promise to convey the deed at closing, and promise to pay contingent on:

Marketable Title from seller, buyer finding financing, and inspections Funding comes as a mortgage: money in return for right to sell house for debt o Closing: Deed becomes contract; sales contract expires unless deed says not, even if not complete o Implied warrantee of habitability in new homes (but not used ones) o Damages for breach: specific performance, damages, recession of deal, vendor/vendees lien o Risk of Loss During Executory Period: What is intent of parties; most Ks now say its on seller Deed: Must ID parties, describe property, state intent to transfer, and contain grantors signature o Deed must be delivered to have transfer; literal delivery or constructive delivery varies by ct (intent) Title Covenant Insurance in the Deed o Special Warrantee Deed: Grantor pay for the problems he causes o Quitclaim Deed: Here is my interest in the land, whatever that may be o General Warrantee Deed: No matter what, I will fix it o Covenants breached at time of conveyance (thats when statute of limitations starts) Seisin: I promise I own the property interest I am claim to give to you Right to Convey: I have the power to transfer this to you Against Encumbrances: There are no encumbrances on the land (beyond my disclosures) o Future Covenants: Of Warranty: Will pay you for loses from violation of promise to convey the title I said Of Quiet Enjoyment: No one with a better title will come and bother you Of Further Assurances: I will take steps to fix any problems with your title (pay off people) Duty to disclose defects: three different regimes: o Caveat Emptor: Dont have to tell anything (cant be fraudulent) o Affirmative Duty: Have to share info you know a reasonable buyer would care about o Suppression: Cannot suppress if you are asked; no duty to affirmatively disclose Johnson: Have to disclose things asked about; Dissent: prudent buyer inspects o Misrepresentation: Grounds for voiding deed in every state (nonfeasance diff. than misfeasance) o Obvious defect: Exempt from requirement to disclose

Common Ownership Joint Tennant: Each person has right to entire property; right of survivorship o Hard to create; need 4 unities: created at same time, get interest from same title, have equal interest and share, and possession w/out 4 unities, you have tenancy in common Usually require right of survivorship in title to create o Is alienable (though it ruins joint tenancy), but not devisable; joint tenant trumps will o Lease in Joint Tenancy: three options (Tenhet v Boswell picked 3rd kind) Lease severs joint tenancy (breaks unity of possession) It severs only if the lessor dies before the term is up (otherwise gets it all back) Does not sever joint tenancy, but the lease dies with the lessor (only lease what he had) o Terminate with ouster or constructive ouster, divorce, or death o *Each party may do what they wish with their interest w/out consent of other (may wreck joint) o *Cannot adverse possess without ouster or clear statement of intent o *Duty to share burdens and benefits of ownership *Cannot charge the other rent; entitled to half of rent from 3rd party Tennant in Common: Each person has right to entire property; can be unequal o People share ownership of a unit; the key interest is one may not exclude the other o Is alienable and devisable; *characteristics are the same

o Terminate with Ouster: kicking one person out Constructive Ouster: things get so bad in marriage that one person HAD to leave (Olivas) Tenancy by the Entirety: Marital Interest (only) with right of survivorship (couple as one entity) o Only terminated by death, divorce or (now) consent o Creditors cannot go after property if debt is only one persons Sawada: House is protected in HI b/c it is in tenancy in the entirety Terminating Tenancy in Common or Joint Tenancies o Ouster: kicking one person out Constructive Ouster: things get so bad in marriage that one person HAD to leave (Olivas) Marital Property: Marriage-Like Relationships o Separate Property (Majority of States) Marriage: Property before and during marriage is owned separately (unless chose to share) Divorce: Property is equitably distributed based on factors on 596 Death: Spouse may dispose of property by will. States may limit this by requiring a share of the estate to go to the living spouse o Community Property (9 States) Marriage: Prior property is owned separately; new property is communally owned Divorce: Some states let parties to take whats theirs and split community; most use eq. dis. Death: May dispose of your and of community; no required shares since surviving spouse has vested interest in the property already o Premarital agreements: Enforced as part of the equation (not dispositive) if reasonable o What is property that was gained in a marriage: OBrien degree is investment, and the husband has to pay the wife returns on it (for how long) o Unmarried Partners: Watts: The intent of the parties implied a marriage-like contract (no need to show agreement, just show that it looks like a relationship we already recognize) Extend to gay? Encourages family; enhances fairness; partys intent Marvin: Recognize any express agreement, oral or written (unless based on sex only) Clear, any two people could enter (extension?), might cost some fairness Illinois: will not recognize a written, explicit K between unmarried people for public policy Very clear, encourages actual marriage, sex is not consideration o Childrens Claims on Marital Property after Divorce divorced parents must provide the necessities that they otherwise would have had they stayed married (Bayliss-college tuition) What world do you want to make in terms of parental liability?

Planned Common Interest Communities Condos and Subdivisions: Covenants make the community look a certain way. Power vested in board o Policy: Balance intent to be in community vs. others rights (e.g. yard signs, grills, association) What about rules that let the board change the rules whenever they want in your deed? Appel: Rule-change provisions are subject to a reasonable standard; there is an inconsistency between an elaborate set of plans and random changes to the rules (reasonableness requirement) vs Woodside (no reasonable standard) Wolinksy: Fiduciary duty from condo association to condo owners to follow bylaws o Leasing (or any other rule): Is there a different standard (to escape restraints on alienability) than in other deeds? Woodside: yes there is b/c condos are different (expectation of owners) *Check the rules against restraints on alienability on page 4

Question: Should the Board/Deeds be able to have restrictive covenants in them: o Vast schemes about little things that make everything looks alike o Take sticks from the owners (leasing, certain occupancy/use rights, etc) o Restrict alienability by saying who can live there? Marriage? Check above for Watts notes Arguments: o Y: Expectations of owners and desire of developer (Woodside) o Y: Freedom to contract and associate o Y: Covenants are valid where they do not restrain unduly or ask the state to violate 14th o N: Public policy: (discriminationwhat about non-protected classes); free form restraints (P. 4) o N: Public Purpose (looks like public) -> NJ Coalition o N: Actual choice as to where to live (vs. presumed choice)

Zoning State makes a zoning enabling act, allowing localities to zone land; most require a general plan o Can regulate the use (what can be done on the land) and area (size of lots and buildings) Contract Zoning: Contract for zoning board to allow variance in return for things from developer o May be unconstitutional b/c subverts the normal process and ability to make free decisions Conditional Zoning: Developer does things hoping for changes Local board can grant exceptions to zoning laws o Variance: Parcel asks for the ability to depart from the plan; can only be granted if it would prevent an undue hardship (interference will all reasonable (economical) use of property taken as a whole, i.e. only to avoid an unconstitutional result); very hard to get after Fairfax County BZA o Special Exception: Built into zoning law (if you do x you get one), but require BZA recognition Historical Zoning: Can pass laws in the public interest so long as they dont rise to a taking Protection for Property Owners from Retro-active Application of the Law o Prior Non-Conforming Use: The prior uses is allowed; cannot be transformed into a new or greater non-conforming use (Parrillos); Goal is to reduce to conforming use over time o Variance: Can be granted to prevent laws from coming back around too Intellectual Property Copyright: grants exclusive rights in literary and artistic works; lasts lifetime + 70 years o Born in the Constitution o Can copyright creativity: literary works, music, pictures, sound and movies, architecture, etc. Cannot copyright facts that you do not creatively gather or display (Feist-Phone #) o Allows you to reproduce, make derivatives, distribute, display & transmit; keep others from same Subject to limitation by Fair Use: free use for criticism, comment or teaching Fact-Based Test: what was purpose (educate v profit), how much was used (too much use violates even pure fair use), and what was effect on market? o Contributory Infringement: (1) knowledge of infringing activity, and (2) assistance or inducement Sony: VCR doesnt create contributory infringement b/c theres significant conforming use What is significant use? Capable of such use, or actually used for it? Dissent: Conforming use is non-productive, so no protection Grokster: There is evidence that they promoted the non-conforming use (business plan, how they make money, no filter, etc); Sonys evidence of conforming use mattered b/c it showed there could be a reason for the product that would undermine intent to infringe. Here we dont need to look at possible use to see that.

Concurring (Gins): Actual, substantial non-conforming use makes you liable Concurring (Breyer): Sony does offer protection b/c there is any non-infringing use. However, there is clear evidence of inducement, so liable. JG Test: Is there evidence to support the allegation that the defendant knew and hoped/intended the product be used to infringe? Sony lives on: that there is conforming use is evidence of a benign intent. For Sony, there was no alternative evidence, so that was sufficient to say their intent was not culpable. For Grokster, conforming use was stacked against a mountain of evidence to suggest that they did intend their product for infringing use Patent: exclusive rights in innovation (process, machine and composition of matter) o Born in Constitution o Patent granted when: (1) subject matter it patentable (i.e. machine, process, and composition of matter), (2) the invention is novel (not unique), (3) non-obvious, & (4) useful Business Process: May be able to call it novel: Amazon v Barnes & Noble one click called novel and non-obvious at district, then reversed o Moore: Can patent the process to isolate genes from another persons cells Trademark: grant exclusive rights in symbols that indicate (distinguish) the source of goods or services o Born in state statutes and expanded later by federal statutes o There are four categories of trademark: Fanciful/arbitrary: mark bears no relationship to underlying product; inherently distinct -Nike Suggestive: Suggests underlying category, but still requires an imaginative leap Coppertone Descriptive: Describes a characteristic of the product (All-Bran, Qualtexs Green Color) Only Gets protection if it acquires a secondary meaning) E.g. Michigan TM by the school Qualitex: Green color is trademarked b/c it has secondary meaning of identifying the maker of the product to the consumer; would be confusion if others used it General: Describes the category that the product belongs in (This gets NO protection) o Trademark is about preventing confusion, so you can trademark a common thing when it takes on a secondary meaning and only to the extent that it protects from confusion E.g. United can be used in connection with food products, but not an airline o Common descriptive names cannot be trademarked b/c they will likely be needed by competitor o Only gives you protection when used in connection with commerce o Loss of Trademark: stop using it; it becomes too common (Kleenex) o Congress protects from cyber-squatting of trademarked names o Infringement: look for why they are doing it? Is it to gain from others use?

Property in Genetic Material You cannot sell body parts (some you can: Hair, blood, etc) o Framing Questions: When do they become property? Stolen? Insured? What do we want to reward: growing, research? What do we want to protect: honesty, research, individual autonomy o We should we be able to sell them Autonomy of the Individual = ultimate freedom It is property: Other people can patent your cells without your knowledge/consent COUNTER: Patent is for the process of getting the cell You can sell access to your body before things leave

You cannot control your body after it leaves you, and you should be able to (consent) If he took them saying he would do one thing and did another liable o We should not be able to sell them Rich/poor issues (poor are organ-growers for rich) Commodification of people/individual autonomy Encourage research (avoid chilling it) Immoral to commodify the body o Moore v Regents of Cal: you do not own the cells that come out of your body o In the Matter of Baby M: K for baby is invalid Babies are not property to be sold in a K Key interest should be the babys (what is best for it) o Where does this line start: conception, other? Mirror abortion rules (viability) Scenario 1: Ultimate Freedom: Sell your body and your babies b/c you can Scenario 2: Mom cant sell baby, but she can sell her maternal rights Scenario 3: The baby is a person, and it is immoral to sell a person (cant sell baby) What about when the sperm is Dads? What if the embryo is theirs? Neither, but K? o What if embryo is theirs & she aborts? (Mirror SC abortion SC, pay damages) Surrogacy issues: void or voidable K? Specific performance or damages? POLICY: Status of women (and poor women); autonomy of women Embryos: Are they property or people? o No court has forced someone to procreate over his or her objection (though different methods to get there). Different considerations when it is the only way for one person to have kids One court said it is just like in vivo sex, and the man has no right after he gives his sperm; o If you destroy one, is it murder or conversion? o Davis v Davis: Embryo is something between property and person.