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.

We framed the problem in terms of time. We argued that in both physical and intellectual property, a similar set of considerations came into play, setting up a recurring trade-off between the benefits and drawbacks of earlier versus later awards. At the same time, however, we stressed that the trade-off played out differently in different contexts and for different types of resources. Further, the core trade-off was itself subject to major modification in light of a variety of practical, largely information-related and communicative concerns involving notice to third parties, systemic simplicity and intuitiveness, and ease of administration. Notwithstanding this diversity and contextual complexity, we sought to assemble a comprehensive list of the variables that come into play in crafting possessory rules and to articulate basic principles about how they fit together.