The Amazing Spiderman Shot Down

Gen_Con_Indy_2008_-_costumes_171In Kimble et al. v. Marvel Entertainment, LLC, No. 13–720, decided June 22, 2015, the Supreme Court held that stare decisis requires the Court to adhere to the precedent set by Brulotte v. Thys Co., 379 U. S. 29 (1964), in which the Court held that a patent holder cannot charge royalties for the use of his invention after his patent term has expired. Stephen Kimble obtained a patent in 1990 for a toy that allows role-playing adults and children to get more into their character as “a spider person.” Kimble’s U.S. Patent No. 5,072,856 (‘856) covers a toy web-shooting glove that delivers a pressurized string foam from a hidden container through a valve incorporated into the glove. Kimble entered into an agreement with the predecessor of Marvel Entertainment that provided for their purchase of the ‘856 patent in exchange for a lump sum and a 3% royalty payment on future sales of Marvel’s Web Blaster toy and similar products. The parties set no end date for royalties. In negotiating the agreement, neither party was familiar with the Brulotte decision. Upon discovering Brulotte, Marvel sought a declaratory judgment confirming that the company could cease paying royalties at the end of Kimble’s patent term. The district court granted relief, and the Ninth Circuit affirmed. Kimble asked the Supreme Court to overrule Brulotte, but the Court declined under the principles of stare decisis, whilst observing “in this world, with great power there must also come—great responsibility.”