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Spiderman, Spiderman, Does whatever a spider can (IP – Hit or Miss?)

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spidermanThe Supreme Court of the United States has handed down its decision in Kimble v Marvel Entertainment LLC on the issue of whether to overrule an earlier decision that held that patentees cannot receive royalties for sales made after the patent expires.

The short summary to this decision was that in SCOTUS’ view the court should adhere to the decision of Brulotte in which a post-patent royalty provision was regarded as “unlawful per se”. So, a victory for Marvel since they won’t have to continue making royalty payments to Stephen Kimble who came up with the idea behind the invention at the centre of the case.

What makes this decision a little more interesting however is that the case involved a Spider-man toy (in particular a “web-slinger” glove that allows its wearer to shot foam webs from their hands, the Web Blaster Spider-Man toy) and the judge (Justice Kagan) was clearly (i) a bit of a superhero nerd and (ii) having some fun in the decision.

The first indication that the decision was playing around a little comes on page 3 where the court states (IPcopy emphasizing the relevant sections in blue font):

“Indeed, Brulotte’s close relation to a whole web of precedents means that overruling it could threaten others”.

But this could have been a coincidence, no? Well, no, apparently not as the following references found their way into the decision…

“Kimble met with the president of Marvel’s corporate predecessor to discuss his idea for web-slinging fun

“The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can)”

“Patents endow their holders with certain superpowers, but only for a limited time.”

“As against this superpowered form of stare decisis, we would need a superspecial justification to warrant reversing Brulotte.”

There was also another outing for “whole web of precedents” before Justice Kagan revealed she’d been saving the best until last:

“What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “SpiderMan,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”).”

In response to all these superhero inspired references the dissenting opinion from Justice Alito was a little bit of a letdown managing only to refer to “super-duper protection” (Must try harder Justice Alito if you want to make it into Justice Elena Kagan’s Legal Avengers).

Readers wondering what the UK Supreme Court can muster as far as light-hearted judgments are concerned probably shouldn’t look into the “Black Spider Memos” case from last year where the use of an exclamation point by Lord Wilson pretty much overshadowed the judgment itself in some corners of the Twitter-sphere….

IP Hit or Miss? A definite IP Hit for Justice Kagan.

Mark Richardson 23 June 2015

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