MIE 305

Real Property

The legal interests in land and things attached to, or growing on land.

Personal Property

Referred to generally as chattel, the rights, powers, and privileges a person has in things that are not real property, may be transferred by sale, gift, or will.

Chattels Real

An interest in land, such as a leasehold.

Chattels Personal

Moveable personal property.

Chattel Personal in Action

Something to which one has a right to possession, but concerning which one which may be required to bring some legal action to ultimately enjoy its possession, ie. check or note.

Bundle of Rights

Dominion and control over something with the right to exclude others.

Possession

The right to claim title over the property, meaning one exerts dominion and ultimate power over it.

Control

The right to decide how the property is to be used, or employed.

Quiet Enjoyment

A means by which the rights holder can decide how to use the property, or what or whom may be there at any given time, but differs from control in the sense that it creates a right to enjoy the property which others, through the law of nuisance, are capable of violating that is separate from merely whether on controls the property in question.

Exclusion

Gives the rights holder the legal ability to determine who or what is not allowed on the property.

Alienation/Disposition

The right to dispose of any or all of the rights one holds in property through sale, gift, or lease.

Encumbrance

The right to place certain burdens upon the property that do not affect essential possession or alienation rights but nevertheless reduce the value or enjoyment one may have in it through voluntary action or through operation of law, ie. mortgage.

Fee Simple Estates

Interests classified as either absolute of qualified present interests.

Fee Simple Absolute

This is the most complete interest a person may have in land and includes the entire bundle of rights. Such an estate is not qualified by any other interest, and it passes upon death of the owners to the heir, free from any conditions and existing in perpetuity.

Qualified/Conditional Fee Simple

A fee simple interest that may be defeated in the future by the occurrence or nonoccurrence of a stated event or condition.

Life Estate

One's rights in the property end upon the death of the grantee or the duration of the life of some other designated person, may be conditional upon an event, do not have the rights of encumbrance or alienation, unless limitations are included interests may be sold or mortgaged.

Estate in Remainder

If the estate is to be given to someone else upon termination of the life estate.

Reversion

If the estate is to go back to the original owner, or revert to the heirs upon termination of the life estate.

Waste

Damage to the real property, so its value is impaired.

Easement

A right that one person has to some profit, benefit, or use in or over the land of another is created by a deed or acquired by prescription or by implication.

Easement by Prescription

If a party uses an easement for a long period of time the owner of the land may not deny the existence of the easement.

Easement by Necessity

The owner of the servient land grants an easement to the other owner by implication.

License

A mere personal privilege given by the owner to another to do designated acts on the land of the owner.

Tenancy in Common (TIC)

This is the most usual method of two or more persons owning property at the same time none of the formalities or unities required for other specialized forms of coownership are essential for this method, ownership rights don't have to be equal, each owner can enjoy the full property, separate and undivided.

Fully Alienable

Interests may be transferred during life or upon death to whomever they desire.

Joint Tenancy

Two or more persons that own property, in such manner that they have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time and held by one and the same undivided possession, enjoy rights to the entire property, no unequal share or conveyance by will, conveyance must be aggred upon by all tenants.

Right of Survivorship

If one owner dies the interests revert to the remaining owners, ususally not applied by courts unless there is a contract clearly stating such, all owners must have equal ownership shares

Unities of Joint Tenancies

Time, title, interest, possession.

Time

Each cotenants interest vested or was acquired at the same time as the others.

Title

Each cotenant acquired his or her interest in the same deed or will as the others.

Interest

Must have identical interests as to their share and quality of title, and they, must all have it for the same duration.

Severance

If a joint tenant conveys their interests to another party during their lifetime it would destroy the unities, reverts the relationship.

Tenancy by the Entireties

Joint tenancy with an addition unity of marriage that may only be terminated through divorce, joint transfer to someone else, or conveyance from one spouse to another.

Community Property

Created at the time of marriage and continues until separation or death, each spouse possess equal interests regardless of which spouse earned or acquired the property.

Eminent Domain

The right that resides in the united states, state, county, city or other public body to take private property for public use upon payment of just compensation.

Kelo v. City of New London

The taking of privately owned land with just compensation for the purpose of transferring it to another private owner as part of a development plan is constitutional under the takings clause.

Lease

A contract by which one person divests themselves of possession of land and grants such possession to another for a period of time, may be written or oral, expressed or simply implied, no rights to convey.

Tenancy for a Stated Period

Lasts for a specific time stated in the lease, statue of frauds requires a written lease if the period exceeds one year, no notice is required when the lease terminates at the end of the period.

Tenancy from Period to Period

May only be terminated upon giving proper notice.

Holdover

The land lord may object and evict the former tenants as a trespasser, or may continue to treat them as a tenant.

Tenancy at Will

Has no fixed period and can be terminated by either party at ay time upon giving the prescribed statutory notice.

Tenancy at Sufferance

Occurs when a tenant holds over without the consent of the landlord.

Trade Fixtures

Belong to the tenant but if not removed upon termination of the lease they become property of the land lord.

Eviction

An action by a landlord to expel a tenant, duty to pay rent is released.

Constructive Eviction

Occurs when the premises become not tenantable, not because of the fault of the tenant, or when the landlord deprives the tenant of quiet enjoyment on the premise.

Sublease

The sub lessee is liable to the tenant and the tenant is liable to the landlord, creates a new leasehold estate.

Lien

The right of one person, usually a creditor, to keep possession or control of the property of another for the purpose of satisfying a debt, they may sell it.

Distress for Rent

The taking of personal property of a tenant in payment of rent.

Intellectual Property

A form of intangible property representing the product of one's mind.

Patent Act of 1790

An applicant for a patent must show that their creation is novel (not previously invented) and nonobvious (must not come from a trivial improvement to an existing invention, subject).

Patent

A set of rights granted by the federal government to an investor that provides the inventor the exclusive ability to make, use, and sell a useful and nonobvious invention for a limited time, in exchange for disclosure of its workings, ideas and aspects of nature may not be patented.

Utility Patent

A type of patent granted for a useful innovative item of process, or an improvement to an existing item or process that also is useful, novel, and nonobvious, lasts for 20 years, types include a machine, an article of manufacture, composition of matter, and processes relating to these subjects.

Design Patent

Provides protections to the appearance of a product, consisting of visual ornamental characteristics embodied in or applied to an article of manufacture, must be original and not offensive, lasts for 14 years.

Licensing

The patent holder simply promises in a contract that he will not sue the licensee for using the patent in exchange for royalty payments.

Prior Art

All public information that might be germane to an applicant's claim of novelty.

Leahy-Smith America Invents Act (AIA)

Makes patent law more relevant to the modern business world and positions the US laws so that they are more aligned with provisions existing in other developed countries, implemented the "first to file rule" as opposed to first to invent.

Patent Application

Contains specifications that describe the intention, claims that present the aspects of the invention that should be protected, drawings accurately depicting the invention, and declarations offering proof that the invention is novel, if the application is "allowed" it is published in the Official Gazette for Patents for possible public objection.

Patent Deed

If there are no objections, this official document is provided by the PTO indicating that a patent has been granted.

Patent Pending

A legally recognized status where a patent has been applied for but has yet to be granted that puts those who might wish to copy the invention on notice that they could be liable for damages and an injunction once the patent is issued.

Patent Agent

Provides assistance in processing a patent application.

Patent Attorney

May assist with the preparation of a patent application, but can also write contracts relating to a patent and litigate in court on behalf of the applicant.

Provisional Application

An initial application process that is easier and cheaper than pursuing the standard patent application but only provides limited rights for a one-year period.

Patent Infringement

The act of making, using, selling, or offering to sell a patented invention or importing to the United States a product covered by a claim of the patent without the permission of the patent owner.

Direct/Literal Infringement

The making, using, selling, or offering to sell a patented invention in the US, it can occur without intent.

Law of Exactness

The infringer's invention is exactly identical to the claims in a patent application.

Law of Additions

An infringer's invention exceeds the claims in a patent application.

Doctrine of Equivalents

Provides a means to protect patents from competitors trying to "design around" a device to make it substantially the same.

Indirect Patent Infringement

Rights to a patent are infringed upon where the invention performs a similar function and the individual elements of a patentee's claims of invention are violated.

Statutory Bar

If the inventor discloses they must file the patent application within one year, protection is unavailable if another person discloses.

Noninfringement

The defendant argues that the allegedly infringing device simply fails to fall within the claims asserted in the patent application.

Patent Misuse

If a patent owner has improperly broadened the scope of term of the granted patent in a manner that hurts competition, this defense is granted.

Innocent Infringement

A patent holder must provide reasonable notice that something is patented, for this defense damages are limited to those that occur after notice of infringement is received.

Patent Trolls

Persons or companies who purchase patents with the intent to enforce the patents against infringers; with no intent to manufacture of license the patented invention, should be used only if irreparable injury exists, available remedies at law are inadequate, appropriate given hardships suffered by plaintiff and public interest are served.

Damage Awards

Whether the infringement was willful or deliberate, whether the infringer had a good faith belief that the patent was invalid, and the party's conduct during litigation should all me taken into account.

Lanham Act

Any word, name, symbol, device, or any combination thereof used by a person or which a person has a bona fide intention to use in commerce to identify and distinguish their goods, from those manufactured by others and to indicate the source of the goods, requires active use in commerce and likely hood of confusion.

Trademark

A distinctive word, name, symbol, or device that is not functional itself and works to identify a particular good or service.

Arbitrary/Fanciful Marks

Have no direct connection to the product or service, do not describe the qualities or characteristics of the item they identify, receive the greatest amount of protection, ie. Google.

Suggestive Marks

Suggest a quality or characteristic, requires imagination to make connection, second highest level of protection, ie. Under Armor.

Descriptive Marks

Describe the goods or services, generally not protected unless it achieves secondary meaning, ie. Holiday Inn.

Generic Terms

Simply refer to a general class of which the specific product or service is only one example, not protected, ie. asprin.

Principle Register

Provides a claim of ownership of the trademark in all 50 states and establishes a right to prohibit imports bearing the mark for 10 years, application must include a description, drawing, date first used, products and service on which it will be used, suggested classification, samples, and a declaration of intention to use it in commerce.

Policing

A company that fails to adequately search for infringers and defend against such activities may lose some or all rights to the trademark, usually involves a watch service.

Actual Abandonment

When the owner both discontinues using the trademark and projects an intent to no longer use it, intent and action are required.

Constructive Abandonment

When the owner continues to use the trademark but either acts or fails to act in such a manner that the trademark loses its distinctiveness.

Trademark Infringement

A legal cause of action occurring when someone uses the trademark of the rightful owner without permission in the sale of goods and services in a manner in which there is likely to be confusion in the mind of the consumers as to the true source of the goods or services, owner must show validity of the mark, priority use of the mark, and likelihood of confusion.

Likelihood of Confusion

Based on distinctiveness of the plaintiff's mark, similarity between the two marks, similarity of the goods and services associated with marks, similarity of the facilities the two parties use in their businesses, similarity of advertising used by the two parties, defendant's intention, and proof of actual confusion.

Trademark Dilution

A legal remedy to the owner of a famous trademark that allows the holder to sue for injunctive relief where the uniqueness of the mark is lessened through the actions of others, requirement to show the likelihood of confusion.

Copyright

The exclusive right granted to the author of an original works, including literary, dramatic, musical, artistic, and certain other intellectual works, to reproduce the work for a set period of time. Must be an original work of authorship and only the tangible form is subject, no requirement to register, exists for the life of the author +70 years.

Copyright Registration

Provides a public record of the copyright claim, the ability to sue for infringement, the prima facie evidence of the validity of the copyright, the protection against the importation of infringing copies, the ability to receive enhanced monetary damages and attorney's fees for successfully pursuing a copyright infringement action.

Work for Hire

Allows someone who did not create an original work to be a copyright owner when an employee or independent contractor actually created the work only if the work was commissioned, come within one of the 9 categories of works, and a written agreement exists.

Copyright Infringement

When a party copies all or a substantial amount of a copywrited work without the owner's permission, includes reproduction, distribution, displays, performances, or alterations.

First Sale Defense

Once a copyright holder sells or otherwise puts the product into the marketplace, the holder no longer has rights to prevent others from reselling the product.

Fair Use Defense

A party can infringe upon a copyright for specific purposes including education, literary, criticism, research, and social comment are included while court consider the purpose, the nature of the work, the amount used, and the impact of the use.

Copyright Remedies

May be equitable including and injunction, possible destruction, or actual monetary damages, the government may also bring criminal charges.

Trade Secret

Valuable information used in a commercial enterprise and not known to the public, derives independent economic value and is the subject of efforts that are reasonable under the circumstances to maintain secrecy.

Misappropriation

Occurs if one discloses a trade secret or uses a trade secret where the trade secret was obtained improperly.

Uniform Trade Secrets Act

Information, including a formula, pattern, compilation, program, device, method, technique, or process that derives independent economic value, actual or potential, from not being generally known to and readily ascertainable to other persons who can obtain economic value from disclosure or use and in the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Contract

Involves a promise or several promises by the exchange of bargained for consideration that are enforceable in court, a legal device to control the future through promises, usually common law.

Agreement

Offer and acceptance, an agreement that is a manifestation of the parties' mutual assent.

Bargained for Consideration

Exchange of value, law uses this to validate and make the mutual assent legally operative.