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Today, Public Knowledge filed an amicus brief in the Supreme Court case Kimble v. Marvel Enterprises. The case, which is over a patent on a Spider-Man web-shooting toy, addresses the question of whether a patent owner can charge royalties based on a patent even after the patent has expired. The Supreme Court decided that such an arrangement was impermissible in a previous case called Brulotte v. Thys Co. The patent owners in this case, Stephen Kimble and Robert Grabb, ask that the former decision be overturned.
The following may be attributed to Charles Duan, Director of Public Knowledge's Patent Reform Project:
“‘With great power comes great responsibility.’ The exclusive rights granted by a United States patent are a great power, and attendant to that power is a great responsibility of the patentee not to misuse the patent right in ways that inhibit future innovation or discourage free use of ideas in the public domain.
“The task of ensuring that patentees live up to that responsibility falls to the doctrine of patent misuse, and in this case particularly to the doctrine of Brulotte. For half a century those doctrines have protected the public and defended constitutional patent policy.
“Yet now Kimble and Grabb ask the Supreme Court to replace these strong protections with rules from antitrust law, rules not designed for the patent policies that misuse serves. The effect on the patent system is certain. Powerful patent actors -- patent assertion entities, for example -- will gain new abilities to wield their patents against the public and against the public interest. Those actors will be free to shirk their great responsibility while retaining their great power. The Supreme Court should not allow for such a result to come to pass.
"Kimble and Grabb patented a Spider-Man style device for shooting foam string spiderwebs, that patent being the origin of this case. They now seek permission to construct never-ending webs of patent royalties by having the Supreme Court overrule Brulotte. Lest the entire public be ensnared in the ensuing tangle of patent rights, the Court should refuse to take such a drastic step."
You may view our brief here.