It’s All ‘Mine’ – Above the LawAbove the Legislation


intellectual-property-law-300×169Guide overview time. Spoiler alert, it’s a favorable one, so when you favor your essential commentary on the savage aspect, what follows may disappoint. The ebook in query is “Mine! How the Hidden Guidelines of Possession Management Our Lives,” co-authored by two regulation professors, Columbia’s Michael Heller and UCLA’s James Salzman. For these of us occupied with gaining a deeper understanding of the “property” piece of mental property, the ebook is a should learn. If just for the simply digested real-world examples of the six guidelines of possession that the authors level to as governing how property is claimed within the trendy world.

Because the dastardly invasion of Ukraine rages on on the time of this writing, the stakes for knowledgeable residents to grasp what’s behind competing claims of possession are excessive. Members of the authorized group, specifically, are charged with serving to others stability out possession claims on a regular basis, whether or not on a world or native scale. And as IP legal professionals, “Mine!”’s remark on how the phrase “mine” takes on an outsized position in a toddler’s lexicon will likely be appreciated by these of us who’ve needed to take care of aggrieved creators or inventors, particularly people who exhibit the same emotional response to challenges to their possession. In brief, it may be a helpful train, even for these of us whose careers in IP are measured in many years, to remind ourselves of first ideas of possession, whereas sustaining our sensitivity to the emotional import of disputes over possession — to the events, their households, and society-at-large.

For instance its factors, the ebook deftly mixes in authorized ideas, equivalent to the selection between taking an ex ante or ex publish method to adjudicating possession disputes, with real-life situations that illustrate how such disputes come up. In a single instance, the ebook discusses how a state courtroom choose sitting in San Francisco determined a dispute over who had the rights to a record-setting house run ball by selecting to outline possession in a singular approach, ensuing within the ball being auctioned off and the proceeds distributed equally between the litigants. Because the authors accurately word, society and jurists outline possession based mostly on a alternative between “animating values” — reasonably than strict authorized definitions of what possession means. In brief, possession shouldn’t be a reality, however a alternative made within the context of resolving disputes.

That distinction is an illuminating one, evoking for me the possession dispute that lay on the coronary heart of the constitutionality of the IPR system for assessing patent validity specified by the America Invents Act (AIA). For inventors, a patent is commonly regarded as a chunk of property owned by the inventor or the inventor’s assigns — with the inventor’s declare and emotional attachment to possession of the patent usually exceeding that of their different possessions, save for his or her bodily house. For many who consider patents as property, subsequently, the concept of the exact same USPTO that granted the patent — after years of rigorous examination and vital expense to the applicant — later revoking that patent is the peak of perversity. We don’t countenance do-overs with regards to driving a used automobile we purchased off the lot, so why ought to a patent proprietor not have clear title to their invention? Or so the query goes. Sadly for patent homeowners, when the difficulty reached the Supreme Courtroom, a small minority of justices exhibited concern concerning the constitutionality of IPRs, or discovered a lot succor within the comparability of right this moment’s patents with the land patents of yesteryear.

As an alternative, the vast majority of the Supreme Courtroom endorsed a unique view of a patent holder’s possession rights. Slightly than a property proper, in Oil States the Supreme Courtroom deemed patents “public franchises” — a particular kind of property, one which might be revoked by the franchise grantor. In brief, they redefined what it means to personal a patent post-AIA, a lot to the chagrin of a lot of right this moment’s patent holders and patent aspirants. Whereas the ebook doesn’t tackle the query of what proudly owning a patent means — although it does have an fascinating and thorough dialogue of IP rights typically — it does word that as a society we’re shifting to a unique possession paradigm in lots of spheres. Spurred by the digitization of sought-after items and companies, we’re continuously being confronted with a alternative between gaining access to one thing we wish, be it a film or track or software program, by a restricted license or in no way. Sure, technically you may pirate issues, however this viewers is above that. At backside, trendy society continues to problem that concept of possession, even of issues as soon as thought sacred and private, equivalent to our privateness and even our DNA.

As you may inform from my very restricted synopsis, the ebook “Mine!” doesn’t draw back from cloaking weighty dialogue of vital authorized and social ideas within the guise of an easy-to-read ebook stuffed with fascinating anecdotes and real-life possession disputes. From Disney’s long-time efforts to increase the copyright on Mickey Mouse to social mores concerning parking spots post-snowstorm, the ebook challenges the reader to hitch the authors on a journey to uncover the hidden guidelines of possession that govern our habits – and subsequent reactions to the claims of possession by others. It’s a worthwhile journey to embark on, particularly for these of us lucky sufficient to take care of mental property possession points as a part of our skilled lives. Search it out and put together for “Mine!” to ship an enriching studying expertise.

Please be happy to ship feedback or inquiries to me at or by way of Twitter: @gkroub. Any subject recommendations or ideas are most welcome.

Gaston Kroub lives in Brooklyn and is a founding associate of Kroub, Silbersher & Kolmykov PLLC, an mental property litigation boutique, and Markman Advisors LLC, a number one consultancy on patent points for the funding group. Gaston’s observe focuses on mental property litigation and associated counseling, with a powerful deal with patent issues. You possibly can attain him at or comply with him on Twitter: @gkroub.


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