The first whaler to drive his spear into his prey, only to have another hunter pluck his catch from him, little imagined his plight would one day contribute to cutting edge case law in the field of intellectual property. The fact that he had not yet taken the creature aboard, when combined with Barry Bonds’ record-breaking home run a century later, would result in the recognition of an unusual form of property, one that could change the practice of patent law, and give patent applicants new rights under Indiana criminal statutes.

In the Barry Bonds matter, the question of when one has obtained a protectable property interest came into sharp focus on October 7th, 2001, the day Bonds hit his 73rd home run in a single season. Not only did he set a record, but Bonds s

et off a series of events that has had significant consequences in the world of intellectual property enforcement.

Awaiting the record- breaking home run was a multitude of fans, each with a glove, all ready to catch the valuable ball about to make baseball history. When Bonds struck the ball, it flew into the stands. Alex Popov reached up, just in time for the ball to land in his glove. But before Popov could complete the catch, several other fans assaulted him in their attempt to take possession of the valuable baseball. The fans illegally threw Popov to the ground and the ball went flying from his glove. Another fan, Patrick Hayashi, who was not involved in shoving Popov to the ground, saw the ball land next to him and scooped up the prize. So it was that a battle over who owned a contested whale met the legal contest over who owned a famous baseball.

The California Superior Court found that just as a whaler who strikes first has a property interest in the animal, so long as the whaler has taken the steps necessary to achieve the completion of the catch, Popov had a pre-possessory property interest in the baseball. As with the whale, only the illegal act of another kept the catch from being completed. This is where intellectual property enforcement comes into play.

Under patent law, when a patent is applied for there can be no action to recover damages from those who have used the protected technology, until the patent has been granted. However, once granted, the patent owner can go back to the infringers and recover damages. Under Indiana law, anything of value, tangible or intangible, is property, and is subject to conversion or theft. Because the patent applicant has taken all the steps necessary to obtain a patent, he has a pre-possessory property interest in the patent. When that property interest is encumbered by counterfeiters, without the permission of the patent applicant, a theft or conversion of the property has occurred. This criminal act could then be adjudicated under an Indiana Crime Victims Restoration Act (ICVRA) suit, where attorney fees are mandatory should the plaintiff prevail.

But what about Popov and Hayashi? In the end, not only did the court hold that Popov had a pre-possessory property interest in the baseball, but Hayashi also had an equitable interest in the same property. Hayashi had not participated in the criminal acts of the other fans and, therefor, had fairly obtained an equitable interest in the property when he subsequently picked up the baseball. The court ordered the ball sold and the proceeds to be split equally between Popov and Hayashi.

So it is that just solutions are often the counterintuitive result of seemingly unrelated bits and pieces of legal history. In any event, an important legal principle arose through one whale of a story.