Comparing Apples to APPLs: Importing the Doctrine of Adverse Possession in Real Property to Patent Law
The greatest trick a law professor can ever pull is to lead a student down a seemingly rational and innocent path of questions and answers, only to corner the student in a position she neither expected to have to support, nor is able to now support without contradicting something she argued earlier. For me, that trick was Adverse Possession. No sooner had I convinced myself of the infinite wisdom of William Blackstone’s argument in my Property casebook that property is the “sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe,” than I flipped the page over to our next reading assignment, which began: “Something is owned by A; subsequently, and without A’s consent, it comes into the possession of B. B might become the thing’s owner.” Who is B and how did he manage to infiltrate the “sole dominion” that maintains an absolute right to exclude? Is nothing sacred?
There are, it turns out, several reasons why adverse possession in property is necessary, namely that, where land is owned by a “sleeping owner,” the doctrine allocates the land to its highest and best use, acknowledges the reliance interests of the possessor of the land, and facilitates market transactions through increased monitoring and more prompt suits for trespass. Why then, does this doctrine not exist for other forms of property, namely patent law?
