Patent Law

SCOTUS accepts Spider-Man patent royalty case; petitioners want court to overrule 1964 precedent

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The U.S. Supreme Court on Friday agreed to decide whether to overturn precedent that bars the inventor of a Spider-Man toy from collecting contracted royalties after his patent expired.

A cert petition (PDF) filed on behalf of inventor Stephen Kimble argues that the 1964 Supreme Court case, Brulotte v. Thys Co., is “a product of a bygone era.” As a result of the decision, the petition says, willing parties are barred from agreeing to amortize patent royalties over a longer time period that extends beyond the patent. Bloomberg and Reuters have stories, while SCOTUSblog previewed the case on Dec. 4.

Kimble’s patent covered a wristband that shoots foam string in the way the Spider Man character shoots his web. A second petitioner, Robert Grabb, acquired an interest in Kimble’s intellectual property rights. They claim they should still be receiving royalties from Marvel Entertainment for a Web Blaster toy developed by the company’s predecessor.

The predecessor company had agreed in 2001 to pay $516,000 and a royalty of 3 percent of net sale in exchange for assignment of the patent. At the time, neither party was aware of the Brulotte decision, according to the cert petition.

Kimble and Grabb sued for alleged breach of the royalty agreement in 2008, while Marvel sought a declaration in a counterclaim that it would owe nothing after the patent expired in 2010. A judge and a federal appeals court agreed with Marvel on the counterclaim.

The case is Kimble v. Marvel.

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