First Ideas

Volume 114 Issue 2 Date 2025 First Ideas by Jeanne C. Fromer We live in a world obsessed with firsts, in terms of accomplishments, creations, races, and milestones. At the same time, societal understand ings of “ first ” can obscure others who in fact came beforehand. This Article is about understanding the hold that the idea of “ first ” has over intellectual property laws and how this hold can make the allocation of intellectual property rights less effective. It locates the roots of “ first ” as a basis to allocate rights in traditional property law. It then sets out four values that a rule of first possession can be seen to promote when it is transplanted to intellectual property: fairness, order, societal benefits, and rhetorical power. This Article’s thick description of how this principle of first possession actually operates in patent, copyright, and trademark laws lays bare that the idea of “ first ” has been mutated and contorted substantially. This Article shows how patent, copyright, and trademark laws’ mutations and contortions of “ first ” are systematic. For one thing, they deviate from actual first possession when they treat someone as a firstcomer for things they have not actually done, through two mechanisms that I term to be “ constructive firsts ” and “ fictional firsts. ” These laws also diverge from actual first possession when they consider latercomers as if they were firstcomers, through three mechanisms that I term to be “ erased firsts, ” “ excused firsts, ” and “ leapfrogging firsts. ” All in all, this description and analysis show that the idea of “ first, ” something we reflexively believe to be objective and straightforward, is instead — at least in the context of intellectual property and due to its mutations and contortions — normative and thorny. An overly simplistic understanding of “ first ” also obscures that the law must make compli cated determinations as to which actions — or verbs — qualify someone as a first possessor at all. With this understanding of “ first ” both broken down and built out, this Article seeks to explore what optimal rules of allocation look like in intel lectual property. It suggests that the purported values of “ first ” — fair ness, order, societal benefits, and rhetorical value — are in fact undermined to some degree by the mutations and contortions of “ first ” in intellectual property. Indeed, rules awarding rights to those who create later or better might instead sometimes better promote these same four values, especially because sometimes awarding rights to those who cre ate first might contravene these values. This Article then proposes that these key values are advanced by integrating in sensible ways awards of patent, copyright, and trademark rights to firstcomers, latercomers, and latercomers who create better. Continue reading First Ideas . Fromer_First-Ideas