Kimble v Marvel: The Supreme Court Applies Superpowered Stare Decisis In Upholding The Brulotte Rule; Post-Patent Expiration Royalties Continue To Be Per Se Unlawful

Fitzpatrick Case Update
June 22, 2015

On June 22, 2015, the Supreme Court issued its decision in Kimble v. Marvel Enterprises Inc., No. 13-720, affirming the Ninth Circuit’s application of Brulotte v. Thys Co., 379 U.S. 29 (1964), which stands for the proposition that patent license agreements having continued royalty obligations post-patent expiration are per se unlawful. Writing for the 6-3 majority, Justice Kagan held that Brulotte must be adhered to because it rests on a “superpowered form” of stare decisis. Justice Alito dissented, joined by Chief Justice Roberts and Justice Thomas.

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