On Friday the Solicitor General filed an amicus brief in Kimble v. Marvel Enterprises. As we
previously noted, in Kimble, the Supreme Court will
consider whether to overturn Brulotte v. Thys Co., a 50-year-old
precedent holding that "a patentee's use of a royalty
agreement that projects beyond the expiration date of the patent is
unlawful per se." In its amicus brief, the Solicitor
General urges the Court not to overrule that precedent. In addition
to relying on stare decisis, the Solicitor General strongly rebuts
the arguments, made by the petitioner and other amici curiae, that
antitrust concepts warrant reconsideration of
Brulotte.
In 1990, Kimble applied for a patent on a toy glove that shoots
pressurized foam from the palm, allowing the wearer to role-play as
Spider-Man. After Marvel manufactured a similar toy known as the
"Web Blaster," Kimble sued for patent infringement.
