Boston University Law Review Online

Boston University Law Review Online, formerly known as the Boston University Law Review Annex, is Boston University Law Review’s online publication featuring symposia, essays, perspectives, and student notes.


Right on Time: Not Quite Right on Economics

Douglas W. Allen
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property, 99 B.U. L. Rev. 395 (2019).
100 B.U. L. Rev. Online 1 (2020)

Oliar and Stern develop an economic framework to understand the timing and nature of a first possession rule to establish property, apply this framework to the acquisition of intellectual property, and consider various policy and legal implications. At the most general level, I think their approach has merit and the applications are reasonable. However, the economic framework is muddled and incorrect. Here I will only comment on their economic framework, where I arguably have a comparative advantage. […]


Claim Communication in Intellectual Property: A Comment on Right on Time

Eric R. Claeys
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 4 (2020)

There is a lot to like in Right on Time. Professors Dotan Oliar and James Y. Stern remind legal scholars that what they call first possession norms do not constitute “an essentially antiquarian topic.” Olian and Stern have also provoked property and IP theorists to consider whether these norms apply in intellectual property (“IP”) law and policy. In IP scholarship, many, many works assume that, since intellectual works are nonrivalrous and nonexclusive, possession norms should not play any role in IP. That assumption seems wrong and deserves to be reconsidered. […]


The Acquisition of Property Rights in Animals: A Brief Comment on Oliar and Stern: Right on Time: First Possession in Property and Intellectual Property

Richard A. Epstein
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 12 (2020)

In their impressive article, Right on Time: First Possession in Property and Intellectual Property, Professors Dotan Oliar and James Y. Stern work diligently to develop a comprehensive theory that explains the acquisition of property rights in the full range of resources starting with land and animals, and then moving inexorably to deal with the three most important forms of intellectual property—patents, copyrights, and intellectual property. […]


The Importance of Communication to Possession in IP

Timothy R. Holbrook
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 18 (2020)

A key aspect of intellectual property is time. Patent law is rife with issues of timing. At the most basic level, patent rights are time-limited, leaving the rights holder a finite period to extract value from the patent. Moreover, as to validity, time impacts when to assess whether an invention is new, nonobvious, useful, and adequately supported by the patent disclosure. […]


The U.S. Patent System was (and is) a Rule-of-Capture Property Rights Regime

Adam Mossoff
Online Symposium: Responses to Dotan Oliar & James Y. Stern, Right on Time: First Possession in Property and Intellectual Property
100 B.U. L. Rev. 22 (2020)

In Right on Time: First Possession in Property and Intellectual Property, Professors Dotan Oliar and James Y. Stern develop a conceptual framework that highlights the trade-offs in the choice between two different types of first possession regimes: the “first-committed-searcher rule” (early awards of property rights) and the “rule of capture” (late awards of property rights). […]