11 J. Bus. & Tech. L. Proxy 1 (2017)

handle is hein.journals/jbtprxy11 and id is 1 raw text is: 






AUSTIN ROCHE*


KIMBLE V MAR VEL ENTERTAINMENT LL0

ECONOMIC ARGUMENT DEFEATED;

SUPERPOWERED STARE DECISIS PREVAILS






In Kimble v. Marvel Entertainment, LLC, the issue presented to the Supreme Court
was whether it should overrule its decision in Brulotte v. Thys Co.,2 which held that a
patentee cannot receive royalty payments after the term of the patent has expired.
The Court held that under stare decisis it must uphold the Brulotte ruling.' The Court
ruled correctly by upholding a ruling on statutory interpretation that Congress had
left unchanged for over half a century. The dissent's inaccurate argument that the
Brulotte ruling was actually bad policymaking is not enough to overcome the
powerful force of stare decisis.6

                              I. THE CASE

In 1990, Stephen Kimble invented a Spider-Man toy that allowed its user to spray
foam  string by pulling a trigger, thus imitating Spider-Man's ability to shoot a
spider's web.' Kimble patented the toy idea under U.S. Patent No. 5,072,856, which
expired on May 25, 2010.' Kimble met with a Marvel representative in 1990 to discuss
his ideas regarding the patent.9 He contends that during this meeting, the
representative told him that Marvel would compensate him if it used any of his



 2017 Austin Roche
   *  J.D. Candidate, University of Maryland Francis King Carey School of Law, 2017.
   1. 135 S. Ct. 2401 (2015).
   2. 379 U.S. 29 (1964).
   3. Kimble v. Marvel Entm't, LLC, 135 S.Ct. 2401,2405 (2015); Brulotte v. Thys Co., 379 U.S. 29, 32 (1964).
   4. Kimble, 135 S.Ct. at 2405.
   5. See infra Part IV.A.
   6. Id.
   7. Kimble v. Marvel Enterprises Inc., 727 F.3d 856, 857 (9th Cir. 2013), affd sub nom. Kimble v. Marvel
Entm't, LLC, 135 S. Ct. 2401 (2015).
  8.  Id. at 858
  9.  Id.


JOURNAL  OF BUSINESS & TECHNOLOGY   LAW PROXY


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