Supreme Court Quotes Spiderman's 'Great Power, Great Responsibility' Line In Rejecting Royalties On Expired Patent
from the good-news dept
Earlier this year, we noted that the Supreme Court was hearing an important case on the public domain in Kimble v. Marvel, concerning whether or not Marvel/Disney needed to keep paying royalties to the patent holder of an invention to make a Spider-Man toy that could shoot webs. Marvel had purchased the patent from the inventor, with an agreement to pay royalties back to him. After the patent expired, Marvel stopped paying. The inventor argued that the contract had no such stipulation. Marvel/Disney argued that you don't have to pay royalties for something that is in the public domain. Yes, this was a case where Disney was arguing in favor of a stronger public domain, odd as that may be.The Supreme Court ruled on the case today and did, in fact, protect the public domain, saying that Marvel doesn't need to pay. Specifically, the Court rejected a request to overturn a previous ruling (the "Brulotte" case) that said that you cannot charge royalties on an expired patent. The majority decision was written by Justice Kagan (who has shown, in the past, to understand these issues pretty clearly). It was a 6 to 3 ruling, with Alito, Roberts and Thomas dissenting.
As Kagan notes:
Patents endow their holders with certain superpowers, but only for a limited time. In crafting the patent laws, Congress struck a balance between fostering innovation and ensuring public access to discoveries. While a patent lasts, the patentee possesses exclusive rights to the patented article—rights he may sell or license for royalty payments if he so chooses.... But a patent typically expires 20 years from the day the application for it was filed.... And when the patent expires, the patentee’s prerogatives expire too, and the right to make or use the article, free from all restriction, passes to the public.In the end, the ruling more or less comes down to the fact that the Supreme Court already ruled one way in Brulotte and there is no compelling reason to overturn that ruling. And, more importantly, in the wake of Brulotte, Congress had many opportunities to change the law if it felt the Court got things wrong -- and did not. And that leads to Kagan's closing line, in which she cites Spider-Man itself:
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: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no "special justification" for departing from it, we decline Kimble’s invitation to overrule Brulotte.Of course, that "great power, great responsibility" argument could also be applied directly to the patent system itself, but so few people actually recognize that. The dissent argument is really kind of bizarre. It argues that the majority is engaging in "policymaking" — but then most of its own argument is entirely in the policy realm, itself. It focuses on the claim that allowing licenses to go beyond patent expiry could be a good thing, since it could lower patent licensing fees by extending them over a longer period of time. That's not really an issue for the Supreme Court to be discussing, though, and is purely a policy question.
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Filed Under: brulotte, kimble, patent expiration, patents, public domain, supreme court
Companies: disney, marvel
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Not odd at all
Dude, I don't know how you can state that as odd at all. It is *always* supported when it is in favor of Disney. God forbid and the world would end if it was the other way around, however. Then the Patent and Contract Hammer of Justice would be rammed so far up the ass of the common plebe who had the audacity to challenge The Big Mouse that he would become a permanent example of Do Not Fuck With The Mouse to all those who would dare to challenge the house that Roy built.
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Re: Not odd at all
It's telling that Roberts voted with Alito and (ugh!) Thomas on this one, and that the dissent was so non-sensical. Kind of amazing that Scalia didn't vote with the loonies.
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Re: Re: Not odd at all
I'm sure politics doesn't play a part, but all three of the dissenters are Bush Family nominees...
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Re: Re:
Most courts - at least in my area - do not like contracts that have no end date or condition(s) and usually judge against them. Non-compete clauses are the most common - courts have only enforced such clauses when there's an end date and a distance specification.
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Dog Bites Man. Masnick Startled, Decides Most Important Story He Could Write.
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Dog Bites Man. Masnick Startled, Decides Most Important Story He Could Write.
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Some people are capable of great cognitive dissidence; none of them should be a justice on the Supreme Court. I'd think that appointees to the highest court should be required to be sane and rational, but that will never happen as long as we instead make it about political gamesmanship.
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It is astonishing that there would even be any dissent
Any contract regarding payments for LIMITED TIME monopolies, such as patents and copyrights, should always be interpreted as having an end date once that monopoly ends.
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Re: It is astonishing that there would even be any dissent
Oh, you can certainly charge. Go to any bookstore and you can buy a copy of a public domain book; go to the Conan Doyle estate and they'll happily charge you a licensing fee to reprint A Study in Scarlet.
But once the work is in the public domain, the former rightsholder lacks the ability to stop someone from undercutting them. So you can download public domain books for free and reprint them at will, and help others do the same.
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Re: Re: It is astonishing that there would even be any dissent
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Re: Re: Re: It is astonishing that there would even be any dissent
I do agree about the implicit end date, however.
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Maybe the inventor should have argued that the contract effectively exchanged a share of the patent with a share of the copyright - and hence the contract should not expire until BOTH had ended.
If he didn't wite the contract that way then hwe should have.
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Fair enough, until Disney makes an animated movie with catchy songs over this case, promptly locking the "toy shooter" under copyright protection for the end of time + 70 years.
And nobody lived happily ever after.
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Response to: AH2014 on Jun 22nd, 2015 @ 11:42am
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High five!
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Re: High five!
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Re: Re: High five!
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Moe, Larry and Shemp
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Re: Scalia?
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Tying Expired Patents to Unexpired Copyrights.
In particular, this patent, #5,072,856, covers the means of simulating the behavior of a particular cartoon character, Spiderman, whose characteristic behavior amounts to emulating a spider. Issues could arise over the tying of expired patents to copyrights, eg. the position of someone who wants to make silly string in a glove toys, but cannot get a license for the Spiderman character. One can argue about whether Spiderman's behavior is copyrightable, or not, but in practice, there is only one comic book superhero who emulates a spider. Others emulate bats or wolves, or whatever. Other factors besides copyright have traditionally tended to restrict entry into the comic book market, eg. the unwillingness of news-stand proprietors to carry more than a certain amount of merchandise, from a certain number of suppliers. In practice, cartoon characters are reasonably well spaced-out. I had a look through an old paper Fantagraphics catalog, to get an idea of what the edgier underground cartoonist might have come up with, and about the closest I could find was a samurai rabbit character Stan Sakai's "Usagi Yojimbo". Most of the underground cartoonists were not interested in Superheroes, and found their personal virtue oppressive. Robert Crumb's "Fritz the Cat" is not a Superhero.
The patent is probably invalid on post-KSR v.Teleflex immediate obviousness grounds. People have concealed so many things in gloves, up to and including bona fide firearms, that merely concealing a "silly string" dispenser would not create "inventive step." The predecessors of the CIA and MI6 developed all kinds of clever gadgets for assassinations.
http://www.google.com/patents/US5072856
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Re: Tying Expired Patents to Unexpired Copyrights.
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Once the contract was signed Marvel became the owner of the patent. This was not a case about patent royalties.
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Making the case about patent royalties.
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