(June 22, 2015) —Any true Spider-Man fan knows the famous line from the epic franchise: “with great power comes great responsibility.” Today, U.S. Supreme Court Justice Elena Kagan had some fun dropping Spiderman references into an opinion on the court’s ruling about Kimble versus Marvel Entertainment, a case that examined payment of royalties for patented inventions after a patent has expired. The case centered on a inventor Stephen Kimble’s creation of a Spider-Man like toy that allowed children to spew foam string from the palms of their hands. Marvel released a similar toy called a “ web blaster,” and Kimble sued the company in 1997 claiming the Marvel toy infringed on his patent. Kimble settled with Marvel, and received a lump sum of $500,000 and the agreement of 3 percent of future sales. Marvel acquired the rights to Kimble’s patent in the process. The settlement neglected to set an end date for royalties and Marvel uncovered a precedent for patents in the 1964 case Brulotte vs. Thys Co., which set the stage for allowing Marvel to stop paying Kimble future royalties when his patent expired in 2010.

The high court ruled in favor of Marvel in today's opinion. Peppered with Spiderman references, Kagan’s opinion is a fun read. It also has interesting implications for patent law, according to Amelia Rinehart, a law professor at the S.J. Quinney College of Law at the University of Utah.

"Brulotte had been talked about for years as based on unsound economic policy, but Kagan reiterates that it’s a patent policy case, not one about competition or antitrust law. The Court’s strong deference to earlier cases could not be overcome by the little evidence presented by Kimble that the per se probation should be changed ­ Congress can make the change if warranted, but it is not the Court’s role in this case,” said Rinehart. "This is an interesting case because many scholars have argued that Brulotte makes no economic sense, and the Court had an opportunity to clarify whether some license provisions in the post-expiration period might be enforceable because they could be pro-competitive, but the Court chooses not to go that route.”

She noted Justice Samuel Alito filed a dissenting opinion, arguing that a clear economic basis exists for overruling Brulotte because it is purely based on patent policy, not statutory interpretation.

Rinehart is available for commentary and interviews today on the interesting case and its implications for patent law. Call her at 225-773-2628. Or e-mail at [email protected].

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