556:
the patent has expired," like an unpatentable article, "is in the public domain and may be made and sold by whoever chooses to do so." In a related line of decisions, we have deemed unenforceable private contract provisions limiting free use of such inventions. . . .or example, we determined that a manufacturer could not agree to refrain from challenging a patent's validity. Allowing even a single company to restrict its use of an expired or invalid patent, we explained, "would deprive ... the consuming public of the advantage to be derived" from free exploitation of the discovery. And to permit such a result, whether or not authorized "by express contract," would impermissibly undermine the patent laws.
536:
586:—in English, the idea that today's Court should stand by yesterday's decisions—is a foundation stone of the rule of law. Application of that doctrine, although not an inexorable command, is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. It also reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.
78:
480:
patented invention, enables users to mimic Spider-Man by shooting foam string. Kimble sued Marvel in 1997, alleging breach of contract and patent infringement. The parties settled that litigation and Marvel agreed to purchase Kimble's patent in exchange for a lump sum (of about a half-million dollars) and a 3% running royalty on Marvel's future sales of the Web
Blaster and similar products. The parties set no end date for royalties, apparently contemplating that they would continue for as long as customers wanted to buy the product.
690:
465:
24:
1150:
962:, 976 F.2d 700, 706 (Fed. Cir. 1992) ("To sustain a misuse defense involving a licensing arrangement not held to have been per se anticompetitive by the Supreme Court, a factual determination must reveal that the overall effect of the license tends to restrain competition unlawfully in an appropriately defined relevant market.");
560:"Brulotte was brewed in the same barrel," the Court said. Agreements under which patent royalties must be paid after the patent expires "conflict with patent law's policy of establishing a 'post-expiration . . . public domain' in which every person can make free use of a formerly patented product."
713:
was not based on anything that can plausibly be regarded as an interpretation of the terms of the Patent Act. It was based instead on an economic theory—and one that has been debunked. The decision interferes with the ability of parties to negotiate licensing agreements that reflect the true value of
555:
In case after case, the Court has construed those laws to preclude measures that restrict free access to formerly patented, as well as unpatentable, inventions. In one line of cases, we have struck down state statutes with that consequence. By virtue of federal law, we reasoned, "an article on which
668:
were an antitrust rather than a patent case, we might as Kimble would like." But this is a patent case—a patent misuse case. It rests on patent policy. "Congress had made a judgment: that the day after a patent lapses, the formerly protected invention must be available to all for free." The "choice
895:
He wonders, however, whether determining what is patent policy will prove elusive, and points to areas where courts have differed—in particular, whether all types of misuse should result in unenforceability of the misused patent until the misuse is purged, rather than in just a requirement that the
570:
in favor of 'flexible, case-by-case analysis' of post-expiration royalty clauses 'under the rule of reason,' " as under the antitrust laws. But the antitrust approach requires courts to undertake a complex analysis "taking into account a variety of factors, including specific information about
800:
blog puzzled over the "strange judicial bedfellows" making up the six-justice majority: "the four so-called liberal
Justices, Breyer, Ginsburg, Sotomayor and Kagan, joined by arch-conservative Justice Scalia and perennial swing vote Justice Kennedy." The four liberal justices "can be understood as
749:
Passing legislation is no easy task. . . .Within that onerous process, there are additional practical hurdles. A law must be taken up for discussion and not passed over in favor of more pressing matters, and Senate rules require 60 votes to end debate on most legislation. And even if the
651:
has proved unworkable." The ease of determining whether a license call for royalty payments after patent expiration "appears in still sharper relief when compared to Kimble's proposed alternative. Recall that he wants courts to employ antitrust law's rule of reason to identify and invalidate those
590:
Therefore, for the courts to reverse course there must be a "special, justification" over and beyond just a belief that the precedent was wrongly decided. This is especially true for statutes, as in this case: For "critics of our ruling can take their objections across the street, and
Congress can
547:
began by explaining how the US patent system reflects a congressional "balance between fostering innovation and ensuring public access to discoveries." Consequently, once the statutory term of the patent monopoly ends, "the right to make or use the article, free from all restriction, passes to the
479:
Defendant Marvel
Entertainment, LLC makes and markets products featuring Spider-Man. Kimble sought to sell or license his patent to Marvel's corporate predecessor and met with its president to negotiate a contract. But the company instead began marketing the "Web Blaster"—a toy that, like Kimble's
730:
applies particularly to decisions based on statutes was relevant here. "When a precedent is based on a judge-made rule and is not grounded in anything that
Congress has enacted, we cannot 'properly place on the shoulders of Congress' the entire burden of correcting 'the Court's own error.' "
775:
In other words, using antitrust rather than patent law to address post-expiration royalties would not create nearly the tempest of uncertainty that the Court feared. Nearly all of the situations applying it would simply be lawful. A tiny number of cases involving both market power and plausible
659:
According to Kimble, the Court states, post-expiration royalties are not anticompetitive; they are procompetitive. They lead to lower royalty rates during the patent term, which leads to lower consumer prices. Also, more companies can afford the cheaper licenses, fostering competition among the
499:
The . . . criticism is particularly apt in this case. The patent leverage in this case was vastly overshadowed by what were likely non-patent rights, and Kimble may have been able to obtain a higher royalty rate had the parties understood that the royalty payments would stop when the
347:
has been "severely, and as it seems to us, with all due respect, justly criticized . . . However, we have no authority to overrule a
Supreme Court decision no matter how dubious its reasoning strikes us, or even how out of touch with the Supreme Court's current thinking the decision
272:
doctrine as developed by the
Supreme Court and the particular legal principle at issue in the case. Another is that the Court firmly rejected efforts to assimilate the patent misuse doctrine to antitrust law and explained in some detail the different policies at work in the two bodies of law.
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disagreed with the Court's refusal to interpret patent misuse law through an antitrust lens. He favored widespread use of the antitrust rule of reason to judge the legality (and therefore enforceability) of all commercial transactions in this country. The effect, he said, would be to make
812:
rule has worked in practice). What is interesting is how he split ranks from the other three so-called conservative justices, Chief
Justice Roberts, and Justices Thomas and Alito, who focused on what they viewed as the deeply flawed and anachronistic foundations that undergird the
321:, in which it held that a contract to pay patent royalties beyond the expiration of the patent was unenforceable. The decision was widely criticized in academic circles and by the patent bar, as well as in lower court decisions. The thrust of the criticism was that the
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doctrine it was not obliged to pay royalties after the patent expired. Kimble sued Marvel for breach of contract and Marvel counterclaimed for a declaration that it was no longer obligated to pay Kimble after the patent expired. Marvel prevailed in the litigation.
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Finally, the Court insisted: "In adhering to our precedent as against such complaints, we promote the rule-of-law values to which courts must attend while leaving matters of public policy to
Congress." The Court concluded with a literary flourish, by quoting from
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the relevant business, its condition before and after the was imposed, and the history, nature, and effect. . . a full-fledged economic inquiry into the definition of the market, barriers to entry, and the like."
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post-expiration royalty clauses with anti-competitive consequences." That procedure requires an "elaborate inquiry" that "produces notoriously high litigation costs and unpredictable results." For that reason, "trading in
578:, acknowledging that sometimes it "means sticking to some wrong decisions." The reason for that is that usually it is "more important that the applicable rule of law be settled than that it be settled right." Moreover:
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giving expression to the longstanding liberal fear of 'over-extending' IP rights, especially patents, given the anticompetitive effects that in their view lurk in the exercise of patent rights." As for
Justice Scalia:
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In addition, decisions of the Federal Circuit have held that a patent cannot be held to have been misused without a showing of substantial anticompetitive effects, except where the Supreme Court has expressly ruled
790:
blog lamented the decision, predicting that it will become "another justification for the legitimate scope of patent rights to be constricted to the point that patents no longer are able to promote progress."
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anticompetitive exclusion or restraint on trade might be addressable under the antitrust laws. Such an approach would give the parties a better set of tools for managing innovation risk in sensible ways.
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L.J. 399, 422 (2003) ("the antitrust rule of reason focuses on one particular issue: the impact on competition, rather than all possible equitable considerations" relevant to patent policy);
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s statutory and doctrinal underpinnings have not eroded over time." There was no change in the law, by judicial or congressional action. "he core feature of the patent laws on which
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does not reflect the Supreme Court's current thinking about competition and monopoly, but it will continue to bind the lower courts until the Supreme Court decides to overrule it.").
958:, 616 F.3d 1318, 1328 (Fed. Cir. 2010) ("impermissibly broadened the physical or temporal scope of the patent grant and has done so in a manner that has anticompetitive effects");
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in this case: "If you were going to write a ridiculous piece of fiction that no one in the industry would believe the plot would start with the United States Supreme Court citing
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126:
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L. 142, 148 (2010) ("patent misuse should transcend the contours of traditional antitrust law and should concern itself with policy of patent law and the effect on innovation").
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he impetus seems to derive from Justice Scalia's deeply rooted judicial conservatism rather than any concern with the scope of IP rights and their exploitation (or how the
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favorably, and sees it as reaffirming a line of previous Supreme Court precedents holding that the misuse doctrine is based on patent policy, not antitrust policy:
442:. at 448 ("A behavior that retards the progress of science would be of concern to patent policy" but antitrust tests are not attuned to this type of problem.")
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decision. Justice Scalia seems to ignore these factors in favour of doctrinal considerations, which brought him to the same result as his liberal colleagues.
292:, 379 U.S. 29 (1964), that a patent license agreement requiring royalties for the period beyond the life of the licensed patent was unenforceable under the
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House and Senate agree on a general policy, the details of the measure usually must be hammered out in a conference committee and repassed by both Houses.
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was thus a bald act of policy making. It was not simply a case of incorrect statutory interpretation. It was not really statutory interpretation at all.
45:
32:
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In 1990, plaintiff Stephen Kimble obtained U.S. Patent No. 5,072,856 on a toy that allows children and other persons interested in role-playing as "
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doctrine should be based on antitrust law principles, and that conduct without a significant anticompetitive effect should not be proscribed.
884:, which had made a showing of substantial anti-competitive effect in the relevant market an essential element of proof in most misuse cases.
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is no bar to business arrangements to defer payment or create joint enterprises, the Court observed. Nonetheless, "Kimble asks us to abandon
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Contracts that restrict free public access to formerly patented, as well as unpatentable, inventions are unenforceable. Earlier decision in
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Limiting Patentees' Market Power Without Reducing Innovation Incentives: The Perverse Benefits of Uncertainty and Non-Injunctive Remedies
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rule gives to the federal courts a broad and probably illegitimate supervisory power over state administration of private contracts.").
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reaffirms the doctrine of cases holding that misuse is not antitrust and does not need a showing of actual anticompetitive effect.
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Putting aside for the moment the merits and demerits of taking an antitrust approach to the issue, the court turned to the role of
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decision will not make those who think the present US patent misuse doctrine is too harsh creep away and vanish into mouse holes."
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Finally, the majority and dissenting opinions informatively articulate two opposing views of the proper role of the doctrine of
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49, 70 (1969) (" In the presence of only the most attenuated federal interest, and absent any generalized public concern, the
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The Court then returned to the patent policy issues it had described earlier. They reinforced the reasons for following
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for several reasons. One is that the Court turned back a considerable amount of academic criticism of both the
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correct any mistake it sees." Moreover, in this case, "Congress has spurned multiple opportunities to reverse
296:, state contract law notwithstanding, because it involved a misuse of patent rights. The Supreme Court in the
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Other commentators, however, have rejected adoption of an antitrust lens for analysis of patent misuse:
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705:, normally a tool of restraint, to reaffirm a clear case of judicial overreach." He insisted that
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Finally, he disagreed about its being Congress's responsibility rather than the Court's to undo
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licensees. Even assuming that this is true, the Court responded, it misconceives the basis for
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Justice Alito also rejected the antitrust-patent misuse distinction that the majority made: "
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decision would seem to be to roll back the line of Federal Circuit decisions culminating in
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does not require us to retain this baseless and damaging precedent. . . .
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for the rule of reason would make the law less, not more, workable than it is now."
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Kimble v Marvel Entertainment: when post-expiry patent royalties meet stare decisis
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476:" to shoot a spider web—really, pressurized foam string—"from the palm of hand."
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Transaction Costs and Antitrust Concerns in the Licensing of Intellectual Property
390:, so long as it remains unresolved, may greatly limit marketing available to .").
101:
Kimble et al. v. Marvel Entertainment, LLC, successor to Marvel Enterprises, Inc.
768:"join the general run of agreements that are nearly always legal." He explained:
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The Trouble with Brulotte: The Patent Royalty Term and Patent Monopoly Extension
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Patents: Supreme Court Holds Post-Expiration Royalty Agreements Unlawful Per Se
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Kimble: Patent Misuse through the Lens of Patent Policy, not Antitrust Policy
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case, the Supreme Court listed some of the criticism suggesting that the
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misuse must stop. He therefore predicts further litigation because "the
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decision was correct and its critics wrong, as to the substantive law.
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grounds, but in the course of its ruling the Court explained why the
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was whether the Court should overrule the 50-year-old proposition in
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could undermine other case law and thus "unsettle stable law."
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rule with the same antitrust-style analysis Kimble now urges."
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The Supreme Court affirmed the judgment below, 6-3, largely on
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Speaking for himself and Justices Roberts and Thomas, Justice
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Kagan, joined by Scalia, Kennedy, Ginsburg, Breyer, Sotomayor
677:, the source of one of the most famous themes of Spider-Man—
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was an antitrust decision masquerading as a patent case."
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with that in recent patent-eligibility decisions such as
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The Insufficiency of Antitrust Analysis for Patent Misuse
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and its progeny are controlling. We are bound to follow
412:, 4 J. Marshall Rev. Intell. Prop. L. 325, 332 (2005) ("
264:, 576 U.S. 446 (2015), is a significant decision of the
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United States Supreme Court cases of the Roberts Court
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List of United States Supreme Court cases, volume 576
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of what patent policy should be" lies with Congress.
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and it even "rebuffed bills that would have replaced
343:, 293 F. 3d 1014, 1017–1018 (CA7 2002) (Posner, J.) (
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a patent, and it disrupts contractual expectations.
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495:The Ninth Circuit reluctantly affirmed. It said:
395:Federal System Ordering of the Copyright Interest
647:Second, contrary to the critics, "nothing about
304:and its doctrine against post-expiry royalties.
839:in a patent case." He compared the approach in
582:Overruling precedent is never a small matter.
386:L.J. 836, 841 (1965) ("Thus, the ambiguity in
926:The citations in this article are written in
701:dissented, asserting that the Court "employs
632:relied remains just the same. . . .
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336:decision was wrong and should be overruled:
849:, which he argued took an opposite view of
679:with great power comes great responsibility
1167:Kimble v. Marvel Entertainment, LLC (2015)
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48:of all important aspects of the article.
1032:135 S. Ct. at 2407 (citations omitted).
1002:, 692 F. Supp. 2d 1156 (D. Ariz. 2010).
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44:Please consider expanding the lead to
863:European Intellectual Property Review
508:and cannot deny that it applies here.
487:decision and realized that under the
65:2015 United States Supreme Court case
7:
1014:, 727 F.3d 856, 8__ (9th Cir. 2013).
960:Mallinckrodt, Inc. v. Medipart, Inc.
468:Drawing of patented device in patent
964:Windsurfing Int'l Inc. v. AMF, Inc.
483:Marvel subsequently learned of the
261:Kimble v. Marvel Entertainment, LLC
71:Kimble v. Marvel Entertainment, LLC
726:He denied that the principle that
315:In 1964 the Supreme Court decided
83:Supreme Court of the United States
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1323:United States Supreme Court cases
1012:Kimble v. Marvel Enterprises Inc.
551:The Court elaborated the point:
543:The majority opinion by Justice
371:Harold See and Frank M. Caprio,
253:Alito, joined by Roberts, Thomas
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22:
966:, 782 F.2d 995, 1001–02 (1986).
640:." To the contrary, overruling
375:, 1990 Utah L. Rev. 813 (1990).
36:may be too short to adequately
1293:2015 in United States case law
1000:Kimble v. Marvel Enters., Inc.
46:provide an accessible overview
1:
1313:United States patent case law
500:patent expired. Nonetheless,
341:Scheiber v. Dolby Labs., Inc.
614:here and not disturbing the
448:Patent Misuse and Innovation
140:4067; 83 U.S.L.W. 4531; 114
764:arrangements like those in
266:United States Supreme Court
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831:, marveled at the role of
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1308:United States misuse law
1155:(Aug. 7, 2015) at 19-20.
367:includes the following:
1238:Eur. Intell. Prop. Rev.
351:Ayres & Klemperer,
1140:135 S. Ct. at 2418-19.
1068:135 S. Ct. at 2409-10.
1050:135 S. Ct. at 2408-09.
1041:135 S. Ct. at 2407-08.
1023:135 S. Ct. at 2406-07.
934:for more information.
930:style. Please see the
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132:135 S. Ct. 2401; 192
92:Decided June 22, 2015
90:Argued March 31, 2015
513:Supreme Court ruling
318:Brulotte v. Thys Co.
289:Brulotte v. Thys Co.
282:The narrow issue in
1149:Herbert Hovenkamp,
1131:135 S. Ct. at 2418.
1122:135 S. Ct. at 2418.
1113:135 S. Ct. at 2415.
1104:135 S. Ct. at 2414.
1095:135 S. Ct. at 2413.
1086:135 S. Ct. at 2411.
1077:135 S. Ct. at 2410.
1059:135 S. Ct. at 2409.
675:Amazing Fantasy #15
408:Richard A. Posner.
363:Other criticism of
205:Ruth Bader Ginsburg
158:Brulotte v Thys Co.
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945:561 U.S. at - n.3.
876:The effect of the
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33:lead section
15:
1209:IP Watchdog
1172:Patent Docs
954:See, e.g.,
829:IP Watchdog
794:Neil Wilkof
788:Patent Docs
618:precedent.
545:Elena Kagan
279:in US law.
229:Elena Kagan
54:August 2021
1303:Spider-Man
1287:Categories
1190:The IP Kat
922:References
825:Gene Quinn
755:Commentary
474:Spider-Man
460:Background
453:High Tech.
420:otherwise.
142:U.S.P.Q.2d
138:U.S. LEXIS
136:463; 2015
107:Docket no.
1264:. at 192,
1240:182, 189.
932:talk page
861:, in the
827:, in the
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548:public."
161:affirmed.
134:L. Ed. 2d
117:Citations
38:summarize
1230:Archived
928:Bluebook
905:See also
865:, views
815:Brulotte
810:Brulotte
766:Brulotte
743:Brulotte
736:Brulotte
720:Brulotte
707:Brulotte
666:Brulotte
662:Brulotte
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642:Brulotte
634:Brulotte
630:Brulotte
623:Brulotte
621:"First,
616:Brulotte
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593:Brulotte
568:Brulotte
564:Brulotte
525:Brulotte
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451:, 10 J.
436:Hastings
414:Brulotte
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310:Brulotte
302:Brulotte
242:Majority
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685:Dissent
382:, 1965
348:seems")
250:Dissent
150:Holding
988:Kimble
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898:Kimble
886:Kimble
882:Princo
878:Kimble
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798:IP Kat
664:. "If
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