Patent

Subject matter:

patent law protects inventions — not just knowledge. A trade secret claim can be defended against with reverse engineering, or independant creation (and defense of copyright) — these defenses are not valid with patents. Patent has set duration – 20 years from date of application – trade secret is good until not secret. Trade secret just exists — patent must be filed at PTO and in every other country — and patent must be issued. A trade secret must be secret, patents are published. Patent law promoted disclosure, trade secret does not. Copyright and Trademark law are agnostic.

Eligabiltiy for trade secret is broad – patent has the four requirements plus subject matter.

Patent is more difficult, but scope of rights is stronger. A patent prevents others from making, selling, using, constructing, assembling, or inducing.

infringement requirements: trade secret – must show wrongfully obtained and used. patent -validity of patent and infringement: accused product or device reads in the patent, either literally or in equivalence.

Trade secret is a state right, patent is a federal right – patent suits must be filed in proper venue. appealed in fed circuit court of appeals in DC – not in the circuit – to promote uniformity of law. trademark can be fed or state and appeal like normal cases.

Pre 1978 28 yrs from first publish with option to renew.

How do you get a patent? Once you get it, you might not get to keep it — in court it can be challenged, seek to invalidate. Patent is a probalistic property right — noone know if it will stand legal defense. Patents are used to fluff up company value – many challenged patents – a high percentage – get overturned in court.

Constitution protects discoveries of inventors and writings of authors to give congress the power to write patent and copyright – not trade secret or trademark laws. Art I Sec 8.

Constituition promotes invention and discovery that promote useful arts (or tech development) — gives monopoly to patent recipient, justified by idea that reward of patent will appeal to man’s greed and spur inventiveness. Thought better than other justifications. Without patent it would be too easy for people to copy inventions for their profit — the problem of ‘public goods’ – so we give patent monopoly.

Patent has serveral parts – specification and claims – specifications describe invention, claims define scope of invention – what is excluded. Claims alone delimit right to exclude, only claims can be infringed. The disclosure is in public domain. It is said that claims must be read in light of specification especially if there is ambiguity. The patent code 112 sets 3 requirements for disclosure –

1. description – invention claimed must be invent described –

2. enablement – description must be in full and clear and concise terms description such that to allow one skilled in the arts to build

3. best mode – best embodiment known at time of application

Requirements for patentability

35 U.S.C.

SS 101 Utility – whoever invents or discovers a new or useful process, machine, manufacture, or composition of matter, or any new or useful improvement thereof may obtain a patent subject to other requirements.

Process art or method – includes new use of known process of — could be method for making someting or a process for using something, or a method for doing something. inventor may invent process or product or both at the same time. Process patent excludes others from making object at issue by same/similar process. Does not exclude making same product with different process.

Product patent broader. Machine, manufacture, or composition of matter- generally products,but some may fit in one or more categories

machine – it does something, every mechanical device, or mechanical power and device, to perform some function producting a certain result

manufacture-production of activces for use from or prepared, giving materials new properties. clothing, furniture, food all fit.

composition of matter all compositions of 2 or more substances and all composite whether chemical or mechanical mix or be gasses fluids powders or solids – human genes,

Excluded subject matter – laws of nature, certain physical phenomena (naturally occurring) or abstract ideas

SS 102 Novelty

SS 103 non-obviousness

SS 112 Enablement

Rights Conferred by a Patent

Diamond v. Chakrabarty, 447 U.S. 303 (1980)

A live, human-made micro-organism is patentable subject matter under [Title 35 U.S.C.] 101. Respondent’s micro-organism constitutes a “manufacture” or “composition of matter” within that statute. patentable becasue it is new – unique, isolated, not repeated by nature, and cannot be reproduced by nature

Dissent: Court should not extend patent protection beyond congress – they could have done so if they wanted to.

Chakra made process to create bacteria that can eat oil. arguement that it was a product of nature was rejected. board held that living things were not patentable — supreme court rejected – alive or dead is not the question. manmade is the question. What makes a living thing human made?

Parke-Davis &Co. v. H. K. Mulford Co. – NY Southern District Court 1911

• Purified preparation of Natural products can be patented as a product (not just a process) in some cases, if they are a new thing commercially and improved therapeutically.
• Natural products are not patentable, man made manipulations are

Brenner v Manson – US Supreme – 1966

Utility – manson wanted to patent chemical compound that had no know use – board said utility was not demonstrated. court of custom and patnet appeals sait utility need not be shown as long as it is not against public welfare – supreme said this is not sufficient – process must produce product that is useful. product must have utility, otherwise process that is new and novel cannot be patented.

In re Fisher – Fed Circuit – 2005

fisher patented ESTs – marker genes are intemediaries not end products, used in experimentation, not a “final product”. Only useful as a research tool mostly. No indication that it will lead to a product.

Patent: The written description requirement. One of several disclosure requirements in patent law.

Spec describes invention, claims set forth bounderies of what is excluded by patent.

Sec 112 simplified:

1. spec shall contain written description of invention

2. enablement

3. best mode

Section 112 reads:

The specification shall contain a written description of the invention, and of the manner andprocess of making andusing it, in such full, clear, concise and exact terms as to enable any person skilled in the art to which it pertains . . . to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

Possession Test: The “possession” test therefore means, in effect, that if you are going to focus on a feature or aspect of the disclosed technology in the claims, you need to indicate that in the specification itself.

Enablement Test:

The Gentry Gallery, Inc. v. The Berkline Corp.

Gentry issued patent for sectional sofa that had recliners facing the same direction and controls for both in a console between the reclining chairs. Berkline made sofas with two recliners with the controls under the cushion. Patent focused on the console. Berkline made recliners without a console, so patent was not viiolated.

Written description in spec only mentions controls on a fixed console.

Written Description Biotech notes: For a time courts requires specific gene sequences – a patent for mouse inselin contained sequenced, but cliamed to cover human insulin. This was rejected because genes should have been disclosed (Lilly). Another case upheld patent of broad class of cells that produced a novel protein

Holding: Ammended claims cannot exceed the original specification

Pioneers: Generally it is the policy to allow pioneers broad protection for inventions, said to promote progress in the useful arts.

“Best Mode Requirement”

a statutory bargained-for-exchange by which a patentee obtains the right to exclude others from practicing the claimed invention for a certain time period, and the public received knowledge of the preferred embodiments for practicing the claimed invention

Best Mode Test:

1) the factfinder must determine whether, at the time the patent application was filed, the inventor had a best mode of practicing the claimed invention

2) Once it is established that the inventor actually contemplated a best mode, a court will inquire whether the disclosure in the patent spec is adequate to enable one of ordinary skill in the art to practice the best mode of the invention

Novelty and statutory bars

Novelty means “new compared to the prior art” — an invention has to be new to get a patent.

Statutory Bar – ” a bar to patentability based on too long a delay in seeking patent protection” — wait too long on publishing, disclosing, or making and no patent for you.35 U.S.C. 102

Conditions for patentability; novelty and loss of right to patent.

A person shall be entitled to a patent unless –

(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or

(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or

(c) he has abandoned the invention, or

(d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor’s certificate filed more than twelve months before the filing of the application in the United States, or

(e) the invention was described in – (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent, except that an international application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an application filed in the United States only if the international application designated the United States and was published under Article 21(2) of such treaty in the English language; or

(f) he did not himself invent the subject matter sought to be patented, or

(g)(1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such other inventor and not abandoned, suppressed, or concealed, or (2) before such person’s invention thereof, the invention was made in this country by another inventor who had not abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other.

Sec 102:

Novelty and Loss of Right

We have a first to invent system (opposed to first to file system)

102a Novelty – “anticipation” – a bar to the validity of a patnet that exists when the disclosure of a single piece of prior art reveals everty element of a claimed invantion. If there is anticipation then there is not novelty.

102b “critical date” – One year prior to applicant’s filing date – key to loss of right

Rosaire v National Lead Co. – 5th Circuit Appeals – 1955

2 guys developed tech to discover petroleum by searching for traces of hydrocarbons in areas. Gulf Oil said that they had already developed the process and used a bit years earlier, never publicized, but not ‘hidden’. patent not granted.

NOTES: “The nonsecret use of a claimed process in the usual course of producing articles for commercial purposes is a public use.”

To anticipate prior knowledge or use in this country it must be accessible by the public. vs It need not be published, just must not be affirmatively hidden.

To show prior use, there is a a stringent requirement — getting your relatives and having a bad inconcluseive picture just won’t cut it.

Novelty under 102a vsnonobvious under 103: 102a single piece of prior art reveals every element, 103 combined prior art references can defeat non-obviousness

Inherency Doctrine

Accidental anticipation of an invention does not bar patenting.

In Re Hall -Fed Cir 1986

Applied for patent, rejected on statutory bar for publication. Held that disertation, with only one copy in a university library in Gernmany is published enough to start one year clock for staturtory bar.

For determining 102b a single copy accessible to members of the public interested in finding the information is a publication.

Cronyn – invented chem compunduseful to treat cancer, rejected as anticipated in student thesis prior to critical date. Court found they were not printed because they were not accessile (in re hall indexed, cataloged, and shelved)

cannot get patent if wait more that one year after invention was put on sale or in public use or described in publication.

Invention given or sold without limitation or restriction or promise of secrecy or confidentiality,

then control has been relinquished.

Egbert v Lippman – US Supreme 1881

Man improved steel bars inside corset, shares with girlfriend and then years later applies for patent, denied because sharing with friends constitutes puiblic use (say because there was no confidentiality agreement.).

City of Elizabeth v Pavement Company:

invented processs for building wooden road. he put 75 in place for 6 years on toll road given patent because he monitered for wear and tear every day and the road was under his control. court said that road can only be tested over a long period of time for wear and tear in public

If sale is primarity for experimental purposes then htat use does not trigger public use bars. a secret commercial use may be fatatl — an experimental use in public may not trigger bar. length of testiing, no of tests, records kept of test, and results and feedback. Were those who performed test obligated tosecrecy, testing must berelated to claimed featureadn not some other part. a market test to see iff consumerswill buy is not anexperimental use — it is a commercial test.

Offer to sell does not trigger “on sale” bar if item offered for sale was not available — only if the invention meets: ready for patentating – reduced too practivce by buiolding a model or inventor has sufficient drawings or descriptions that one skilled in art could build model.

Defeasible Estates

Defeasible Estates

A defeasible estate is created when a grantor transfers land conditionally.

Present interests – Fee Simple, Fee Tail, Life Estate – grantor can also setup different conditions to setup different present interests or future interests.

A fee simple absolute lasts forever. Defeasible lasts definitely, but can be forever dependant upon conditions/requirements.

Fee Simple determinable: a fee simple so limited that it will end automatically when a stated event happens. Will have durational language “To ‘A’ so long as they use the land as a farm.” Has possibility of revertor – if condition is violated, by operation of law, ownership of interest automatically reverts to future interest. A fee simple determinable always has possibility of reverter always back to the grantor (or heirs).

A Fee Simple Subject to Condition Subsequent: a fee simple that does not automatically terminate but may be cut short or divested at the transferor’s election when a stated condition happens. A Fee Simple Subject to Condition Subsequent grants Right of Entry or Power of Termination to future interest. Not durational language (default Defeasible Estate). A Fee Simple Subject to Condition Subsequent has a grantor as the future interest.

Fee Simple Subject to Executory Limitation – Executory Interest – works like a possability of revertor – condition is violated ownership automatically transfers. The owner of future interest is another transferee.

Shifting and Springing – a springing fee simple subject to executory interest is an interest that springs from grantors estate a shifting executory interest is defeasing from another transferee.

Condition vs Covenant – Condition violation results in forfeiture, Covenant violation results in damages of injunction.

Cali no longer recognizes FSD – but most states do.

Right of Transfer – conditions created by grantor will transfer. Interest will not change.

When you do tranfer a defesable interest you can only transfer what you own — you cannot remove conditions.

Conditions can be bought – you can buy power of reversion or power to transfer.

Analyze defeasible intersts:

1.Classify interests.  Present/Future

2. Will court enforce the condition ? If condition is unenforceable, cross it out and start over.

3. Has condition been violated

4. What is the current state of the title and ownership

Mountain Brow Lodge No. 82, Order of Odd Fellows v. Toscano

Possible unreasonable restraint on alienation

Parties: Appellant is the alleged grantee of a title to real property which it acquired 4/6/50 by gift deed from decedents, the Toscanos. Appellees are administrators and trustees of the estates of the grantors

Cause of action/remedy sought: The following is a cause of action to quiet title on a piece of property (court order)

Procedural History: Trial court rendered judgment in favor of respondents.

Facts: Respondents maintain the language created a fee simple subject to a condition subsequent and is valid and enforceable. Appellant claims the restricted language amounts to an absolute restraint on its power of alienation and is void. They add since the purpose for which the land must be used is not precisely defined, it may be used by appellant for any purpose and hence the restriction is not on the land use but who uses it (reversion clause only takes place if land is sold or transferred).

Issue(s): Under property law (of equity), does the language of a deed describe the creation of a fee simple when it reads, “Said property is restricted for the use & benefit of the second party, only; and in the event the same fails to be used by the second party or in the event of a sale or transfer by the second party of all or any part of said lot, the same is to revert to the first parties herein, their successors, heirs or assigns.”?

Holding: Yes. The grantor cannot place a restraint on alienation because it is an essential stick in the bundle, however a restriction on the use of the land is NOT a restraint on alienation even if that is its effect; Lodge 82 may sell their land to whomever they like, but only they can use it; distinction by the way, is restriction on land use and alienation.

Court’s Rationale/Reasoning: A clause which prohibits appellant from selling or transferring the land under penalty of forfeiture is an absolute restraint against alienation and is void (common law). So, court first looks to the language of the deed to ascertain if there is a void clause. They determine the language of the common law does not permit alienation, but as long as there is language in a deed which exercises the power to demand how the land is used, that part of the deed is okay.

So, did the use condition create a defeasible fee as respondents maintain or is it also a restraint against alienation, which is what appellant alleges. This is a fraternal lodge, of which the decedent was an active member until his death. The term “use” as to applied to real property could mean a “right which a person has to use or enjoy the property of another according to his necessities.” The court puts these thoughts together and decides the deed says it is to be used for fraternal purposes only, that the land was conveyed upon this condition.

Thus, the Habendum clause portion which referred to the land use, when construed as a whole and in light of the surrounding circumstances, created a fee subject to a condition subsequent with title to revert back to the grantors, their successors or assigns if the land ceases to be used for lodge purposes. So, in order to avoid even more confusion, the court rewrote part of the clause to read “subject to the condition that said property is restricted for the use and benefit of the second party only;…” the penalty is the land reverts back to Toscano heirs.

Rule: The object in construing a deed is to ascertain the intention of the grantor from the words which have been employed and from surrounding circumstances.

Dicta: Appellant does argue the restriction could be merely upon who uses it, and not how. But CA courts have upheld the validity of restrictions on land use in deeds, even though they hamper alienability. However, if carried out to its conclusion, the restrictions on how the land is used may indeed become a restriction on who uses the land.

Dissents: The entire Habendum clause which purports to restrict the fee simple conveyed is invalid as a restraint upon alienation (transferring title). If we are to have realism in the law, the effect of language must be judged accordingly to what it does. I would hold the property free from restrictions.

Some courts will not enforce a restiction that materially affects marketability adversely . They will also consider a condition’s duration, nature or efficacy .

Eminent Domain / Takings

Property Rights generally defined by state legislatures, but courts may limit reach of legislature

Eminent Domain

5th – “nor shall private property be taken for publicuse, without just compensation”

3 elements – Private Property, Public Use (Kelo Hell), Just Compensation

Kelo vs City of New London –
rational basis review – when somebody challengesa statute or act of govmnt as being unconstitutionsl, cour says what basis will we decide? what level of scrutiny? when act impairs fundamental right (speech, etc) or rights of a suspect class (who have sopecial protection) court applies stricter scrutiny at case. When legislation is socio/economic court applies a more deferential review of legislation – they ask is it rational or arbitrary (lower bar).
1 deference to legislature – local gov’mnt (separation of powers justification)
2 precedent – Other cases had priv property taken from one owner to another private owner with public purpose
3 federalism – feds should defer to states
4 pragmatic – economic development is a government function

Public Use – Common Carrier
Transfer from Private to Public Ownership
Public use is the same as public purpose -this means that

in the old days publicuse only meant public ownership – then common carriers came and became “public use”

?
petitioner wanted effects test – is the public benefit used to justify ED condemntaion real?

Kennedy – concurs – but says if you could show that only one private entity benefitted it would be improper

dissent – any property can be taken if public use = public purpose

Police Power- power to promote health safety and welfare

court presumes constitutionality
governmet pursued legitimate government objection
law/regulation uses rational means to pursue objective

No compensation – only injunctive relief available

Nuisance – property owners can sue each other for injunctive relief primarily – may be some compensatory relief
Governments can always abait nuisance

What is a regulatory taking?

Until 1922 Eminent domain and police powers were entirely separte. Regulatory taking is gov’t using regulation under police powers (for Health safety and wealth) to control land use – if police power is extreme then it becomes eminent domain

Pennsylvania Coal Co. v. Mahon – not nussuance because pen coal owns mineral rights. not public because —-, Kohler act was took away pen coal property rights – was a regulatory taking (eminent domain – taking land from pen coal and giving it to Mahon)

Adverse possession

when does possession overrule ownership

Efficient resource allocator – prop should be used to produce wealth. law should follow marketplace – ought to properatize anything people want to buy or sell. gov’t should only regulate to promote free market.
Guardian of Individual Liberty – a man’s home is his castle. Libertarianism
Socio-Political structure – property=power and opportunity, calls self a realist perspective.
Property as basis of personhood or community – durkheim – some emphasis on community rights.

No paper has to ‘move’ to transfer ownership of property.

Quiet Title Action –
6 elements of Adverse Possession + Tests
1, Acrtual Entry – test – used as a typical owner would use it.
2,
Lutz
Menio

claim of right vs color of title

Adverse possesion – when does possession overrule ownership

Philosophies behind Adverse Possession:
Efficient resource allocator – prop should be used to produce wealth. law should follow marketplace – ought to properatize anything people want to buy or sell. gov’t shoult only regulate to promote free market.
Guardian of Individual Liberty – a man’s home is his castle. Libertarianism
Socio-Political structure – property=power and opportunity, calls self a realist perspective.
Property as basis of personhood or community – durkheim – some emphasison community rights.

No paper has to ‘move’ to transfer ownership of property.

Common Law Elements of Adverse Possession
1 “Actual Entry” typical owner in these circumstances
2 exclusive possesion
3 open and notorious typical owner again
4 Claim of Right = State of mind Objective(majority) – actual – not state of mind, good faith(Minority) – inadvertent innocent trespasser – does not know ownership-, bad faith (super minority)- knows of ownership but takes it anyway
5 adverse Is the nature of the possession subordinate to the true owner
6 continuous for the statutory period typical owner of this kind of land in these circumstances… (so all elements must be continuous)

2 types of AP claims –
Claim of Title – what you get if you win is what you possess
Color of Title – Bad Paper – adverse possessor has documentation that is not legally effective – fraudulant, or from a will that transfers ownership incorrectly, court judgment that has been overturned. you may get all claimed on paper if you win.

Van Valkenburgh v. Lutz, Court of Appeals of NY (1952)

Statute – transcript s39 and s40 – majority says substantial enclosure means building a fence. dissent says there were barriers. Dissent says his garden was usually cultivated – majority says since they did not use whole property so was not usually cultivated. dissent says junk and litttle house and chicken coup were improvement, majority said it wasn’t much so it doesn’t count.

Shed/Shack – in evidence, they built the shed where they knew it was not their land (bad faith) – implied test is not bad faith- must be good faith becuase mental state doesn;t matter when objective

Garage encroachment – accidental encroachment (good faith) – implieds a bad faith standard.

1. there can ba huge factual disputed on meeting of elements

2. court needs to set and apply standards this court did not

Author: Bram

Parties: AP is the adverse possessor by means of foreclosure purchase, APE is the former possessor of said land.

Cause of action/remedy sought: This is an equitable action to quiet title of a traveled way to APE’s land.

Procedural History: Trial court found in favor of APE, awarding him right of way over the traveled way. Judgment affirmed. This court reverses.

Facts: AP’s bought land which was previously APE’s for 15 years in a foreclosure sale. After APE cleared most of his belongings off the land which was foreclosed upon, but argued he still had the right to the traveled way to his remaining property, which were on property adjacent and behind the foreclosed land. AP built a fence blocking the right of way, which had been used for several years by APE’s.

Issue(s): Under property law, does the adversely possessed party have right to a traveled right of way to provide access to their properties on either side of the possessed land by interposing the claim they had used the right of way for almost 30 years prior to the possession?

Holding: No. Under New York law, Lutzes never actually owned the land they claim was adversely possessed, so there was no adverse possession.

Court’s Rationale/Reasoning: The court goes right to the NY law, which sets out the requirements for adverse possession. One must own the land to claim adverse possession in the first place. There are two such ways in which one can prove ownership of the land: by either enclosing it, or by substantially improving it.

Here, APE’s did neither. The garden was never enclosed by anything. Additionally, the cultivation of the garden never utilized any substantial portion of the land, as it was too speculative of a claim to make the substantial claim.

APE also claims he had a shed and other items on the property so as to show “a claim of title,” which could provide proof as to the adversity this alleged dispossession has caused. However, the shed, a portable chicken coop, consistently cleared brush along the path, or even old furniture on the traveled way are not symptomatic of a claim.

Finally, APE’s actions seal the deal. Upon hearing of the possession, he acquiesced to AP’s claim of legal title conferred actual ownership, instead of declaring his ownership claim.

Rule: NY Law: “To acquire title to real property by adverse possession not founded upon a written instrument, it must be shown by clear and convincing proof that for at least 15 years there was an “actual” occupation under a claim of title, for it is only the premises so actually occupied “and no others” that are deemed to have been held adversely.

The essential elements of proof being either that the premises (1) are protected by a substantial inclosure, or are (2) usually cultivated or improved. (civ prac act).

Did court avoid issues?: What is the standard of owning the land in this case (subjective, objective)

Dicta: N/A.

Dissents: There is no doubt the record contains some evidence the premises were occupied by Mr. Lutz for 15 years under a claim of title, for he used the land as anyone would have if they had actual title to the land: he tilled it, cleared it, raised chickens on it, and even stored things on it. Additionally, his acquiescence to the title claim by AP’s after the foreclosure sale should not dismiss his previous stay on the land in question. He had property which was bottle-necked by this traveled way, and he needed and used this way to get to and from both properties. Title on the record in this case, since no one owned the land when the Lutzes first settled there, shouldn’t matter if Lutz himself took the area in question as his.

As to the substantial portion of the requirement of improving the land, NY law does not call for such an absolutism: Lutz used enough of the land, some for fire wood, some for his produce business, and some for raising chickens and storage. The neighbors attested to these facts (as well as the ones above). How could the land not at least be accessible to the Lutzes?

Mannillo v. Gorski, Supreme Ct. of NJ (1969)

for small encroachmeents – 1 open and notorious – require actual knowledge by true owner of adverse posssession – effectively shifts burden on to encroacher

2 on claim of right – moved from bad faith state of mind to objective standard

3 remedy – in an innocent trespass, expensive to resolve, court can force TO so sell to APE at fair market value – economic efficiency retional.

Author: Bram

Parties: M is the landowner, G is alleged trespasser/adverse possessor.

Cause of action/remedy sought: M filed a complaint seeking mandatory & prohibitory injunction against an alleged trespass upon their lands. G (DF) seeks declaratory judgment to settle once and for all that she gained title to the disputed premises by adverse possession under NJ statute of limitations.

Procedural History: Trial court entered judgment for DF’s. DF appealed to Appellate Division after trial court judge decided instead to rule for PL’s, but came to this court on certification. This court remands on three issues:

(1) whether the true owner had actual knowledge of the encroachment

(2) if not, whether PL’s should be obliged to convey the disputed tract to DF

(3) and if the answer to the latter question is in the affirmative, what consideration should be paid for the conveyance.

Remand contemplates further discovery and a new pretrial.

Parties later settled after remand, where DF paid PL $250 in exchange for deed to the land in question.

Facts: APE bought a house in 1946, then raised the house in the summer of 1953. In order to do so, he made some changes to parts of the house, including some stairs (but did not change the width of them). Steps and front walk encroached on PL’s property by 15 inches. DF contends they obtained the land through adverse possession through the state’s statute of limitations, as no one contested the land before this suit. PL claims there was no adverse possession b/c there was no hostile intent to take the land to begin with.

Issue(s): Under NJ property law, does an entry and continuance of possession under the mistaken belief that the possessor has title to the lands involved exhibit the requisite hostile possession to sustain the obtaining of title by adverse possession?

Holding: Yes. This court discards the requirement that the entry and the continued possession must be accompanied by a knowing intentional hostility and hold that any entry and possession for the required time which is exclusive, continuous, uninterrupted, visible and notorious, even though under mistaken claim of title, is sufficient to support a claim of title by adverse possession.

No presumption of knowledge arises form a minor encroachment along a common boundary. In such a case, only where the true owner has actual knowledge thereof may it be said that the possession is open and notorious.

Court’s Rationale/Reasoning: NJ case law said that mistake was not necessary of adverse possession; this law goes back to 19th century Maine doctrine, which says that even by mistake the taking of the land must be intentional and absolute (ignorance is no good). It disfavors an honest, mistaken entrant.

The other end of the spectrum is old CT law, which says the very nature and act of dispossession is the intent to assert their own title, and intent is implicit in this taking. Treatise on property favors CT law. The bottom line is, mistake or intentional, when an owner of some part of their land is dispossessed, therein lies an ouster, and if no one complains about it for the requisite amount of time in the statute of limitations, then the adverse possessor takes the land.

The decision is based out of practicality, for if disputes over land included those which were based on a few inches with no physical line of demarcation involved so as the adverse possessor did not know, all owners would have to be constantly on alert for the slightest encroachment on their land, which would require a survey most likely, which would require spending unnecessary amounts of money.

These holdings could result in some cases of undue hardship to the adverse possessor who undertakes a costly improvement which is knowingly claimed by the real owner therefore forcing the adverse possessor to right the mistake, but equity may furnish that sort of relief. If that situation does happen, the owner of the land may have to give the land over to the adverse possessor, but the original owner may receive compensation for their loss.

Rule: NJ statute: “every person having the right or title of entry into real estate shall make such entry within 20 years next after the accrual of such right or title of entry, or be barred therefrom thereafter.” (statute of limitations)

Acquisition by Find

lost – unintentional loss of possesion
misplaced – left on purpose and forgotten or something
abandoned – finder gets it
Already owned item, subsequent person makes claim of ownership. Finders claim is better than anyone in the world but the true owner. Property rights are relative. Possession is related to ownership, but there is a first in time right: T.O. > 1st finder > finder > … > Everyone Else
Bailment – bailor – bailee – finder has custody- jeweler has duty to one who gave them broach
ArmonyVDelamirie – lost
Chimney sweep finds jeweled broach – took to jewler who swiped stones. sued jeweler for thieving.

HannahVPeel lost
Does owner have claim to property found there — if we give prop to owner of locus, would it advance goal to return to true owner?
Where was it found? In a private or public part of the building
Rable
Status of the finder
McAvoyVMedina misplaced
customer found wallet in barber. finder and shop owner dispute who has a claim
III. Right to Include, the Right to Exclude
one if the sticks in the bundle – right to exclude.
JacqueVSternbergHomes

StateVShack

Trade Secret

In US Trade Sectret law is entirely state law – no fed trade secret law: state statute, case law,etc.

Trade secret falls in both torts and property theories
1. Have Trade Secret (Do you have property?)
2. Protect Trade Secret (Occupy property)
3. Misappropriation (Tort – make you whole)

Balance property vs tort reasons – more egregious conduct can trump property claim

3 prime elements of trade secret claim –
1 Existence of a valid trade secret,
2 Person claiming trade secret to reasonable efforts to maintain and secure secrecy, and
3 Misappropriation by the accused. acquire through improper means or by breach of confidential relationship (both express and implied)

Metallurgical Indus inc v Fourtek – 5th Circuit Appeals 1986
Metallurgical developed an industrial process that combined in a new way know processes.  Defendants copied process (they gained knowledge of process from previous business interactions with plaintiff).  Plaintiff’s sued alleging misappropriation of trade secret.  Defendants argued that process was not secret because it was told to a number of businesses that P dealt with.  Court found that disclosures were not public and that D had an implied duty of confidentiality.

Rockwell
duty of confidentiality on vendors
balance needed precations vs overly extreme measures

DuPont
Fly a plane to take pictures on incomplete plant

Equality Before the Law

Equality before the law is a concept that the courts claim to support.

Wo v Hopkins – US Supreme Court 1886
Challenge to as statute allowing no laundry in wood building w/o approval of San Francisco Board of Supervisors.  US Supreme Court ruled that a law that is race-neutral on its face, but is administered in a prejudicial manner, is an infringement of the Equal Protection Clause in the Fourteenth Amendment to the U.S. Constitution.

Michael M v  Superior Court US Supreme Court 1981
Sex between two minors. probably rape, but charged with statutory rape. statute said unjust because only male could be charged with sex with a female. state wants law to stop teen pregnancy and abortion.
People v Robinson

Alleged heroin addict convicted of just being a drug addict – not all 3 elements of law are claimed by people.  He was convicted on officers testimony.

Robinson v California US Supreme Court – 1962

The Court decided to reverse the lower courts’ rulings, holding that the sentence violated Robinson’s Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment. The Court reasoned that Robinson’s sentence was like imprisoning people for having a mental illness, a venereal disease,or leprosy and maintained that drug laws should strive to prevent the sale, use, and possession of illegal drugs, but not punish people with the status of having a drug addiction.

Powell v Texas US Supreme Court 1968

Alcoholic convicted of public drunkeness.  Argued that he was being convicted of his sickness, contrary to Robinson, court held that he was convicted of his act (drunk in public) – court left open idea that conviction might not have been upheld if he did not have a home where he would have been able to drink.

Culpable Conduct – Mental State Requirement

Mens Rea – guilty  mind

Mental state requirement.   To be guilty of most crimes need to act and be at ‘fault’ — that is have a culpable mental state.

“specific intent” – a crime that in addition to proof of intent to commit act there is “intent to do some other further act or achieve some additional consequence.”

“general intent” – a crime where it only needs to be shown that there was intent to commit the act (with no other goals needing to be proved).

People v Hood – 1969 Cal Supreme Court – Police try to arrest a drunk man.  Man takes police gun and shoots an office.  Charged with assault with a deadly weapon and convicted, Hood appealed to appeals court and has conviction upheld.  Supreme Court finds that jury instructions were improper — court held that jury should not have been told to consider intoxication.  Held that intoxication should only be considered in specific intent crimes — his crime was of general intent.  Court ordered a new trial.

Model  Penal Code and Mens Rea – – Model penal code replaces general and specific intent with four categories – Purposely, Knowingly, Recklessly, and Negligently.

Model Penal Code and Intoxication.  Self-induced intoxication is not a defense against reckless behavior when the defendant would have beed aware of risk while sober, intoxication does not constitute a mental disease, and not self-induced or pathological intoxication is an affirmative defense when actor lacks substantial capacity.

People v Williams – 2001 Cal. Appeals court – Man shot gun at romantic rival, and unknowingly at two sons of target.  Man convicted of 3 counts of assault.  Man appealed claiming that he did not know that two sons were there so he could not have intended to harm him.  Court held that “assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur.  Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.”  That is assault should be considered a general intent crime.  Dissent claimed that this was error and that assault has always been a specific intent crime.intent to engage in an act reasonable personwould knowlikely to produce violent injury

assault is a general intent crime.intent to engage in an act reasonable personwould knowlikely to produce violent injury

knowledge of facts that make such violent injury likely

Model Penal Code and assault

1. Purpose

2. Knowledge

3. Recklessness

4. Negligence

MPC and williams –

1. purpose to inflict “injury”  – Kennard

2. knowledge

3. recklessness – carmen – recklessness insufficient to show assault

4. reasonable person would have been aware (negligence) – williams majority

P eople v. Wetmore – 1978 Cal Supreme Court – Defendant entered Cacciatore’s apartment, thinking it was his own, and wore Cacciatore’s clothes and cooked his food until Cacciatore came home days later. Defendant only realized he was not Cacciatore after the police arrived. The decision for People v. Wells (1949) included dicta that claims evidence for insanity cannot be admitted during the guilt phase. Defendant had been acquitted on insanity, but was appealing because an insanity acquittal sends one to a mental facility. In the guilt phase of the trial, in determining diminished capacity (the defendant did not have the specific intent), can evidence of insanity (the defendant could not have the intent) should be admitted, even if it might result in an acquittal? Held Yes; Evidence of insanity must be admitted at the guilt phase, and the prosecution must bear the burden of refuting all evidence. Can diminished capacity from a mental disease or a defect be used even if there is no lesser included offense? Held Yes; A defense of diminished capacity resulting from a mental disease or defect extends to all specific intent crimes.

Culpable Conduct – Act Requirement

Culpable Conduct

Legislatures are free to define crimes and apply punishment as they see fit as long as it does not violate Constitutional protections, as in Due Process, Cruel and Unusual Punishment, or Equal Protection.

There is a general requirement of proof of act and a culpable mental state.

Act Requirement

Actus reus – act requirement – you cannot be charged criminally for bad thoughts.

Robinson v. California – 1962 Supreme Court case.  Robinson was convicted of being a drug addict.  Supreme Court ruled that eight and fourteenth amendments were violated because law punished person’s status, like punishing for being mentally ill.

Powell v. Texas – 1968 Supreme Court – Powell was drunk in public and claimed that Robinson protected him, reasoning that he was an alcohalic and not responsible for actions.  Court held that law was for action not for status.  When he took a drink he acted, law was about behavior – an act requiement.)

In re David W – 1981 Cal Appeals Court – Out of control juveneille was forcibly removed from his home at Mothers request and taken to hospital.  At hospital boots were found to contain pills.  Police arrested and he was charged with being publicly under the influence of drugs.  Court overturned because crime was involuntary – police forced him to enter public.

People v. Newton – 1980 Cal Appeals Court – Black Panther claimed to not remember much about shooting involving police.  Police account were mixed up a bit and Huey P Newton claimed a different story:  that he had no gun, that the police knew who he was and threatened him, and that he was shot with no provocation (other than political activism).  After that he can remember nothing until he was in the hospital – a condition consistent with his injury (a lot of  people shot in the gut have disrupted memories of the incident according to expert witness).  Court found that involuntary unconsciousness is a complete defense to a charge of criminal homicide, and that the jury should have been given instructions reflecting this, since unconsciousness was at least partially used as a defense. Court ordered a new trial because of this error.  All power to the people.

People v. Heitzman – 1994 Cal Supreme Court – Elder abuse law made a crime of either direct abuse or by failure allowing abuse.  Court found that to apply law a duty must first be demonstrated – actual neglect with no special relationship resulted in a duty and allowing neglect when a special (custodial) relationship imposed duty, but when there is no special relationship then there is no duty to prevent abuse.