SCOTUS Patent Scorecard Update: Kimble Maintains Brulotte Status Quo

On June 22, 2015, the Supreme Court issued a largely unremarkable patent/contract opinion, Kimble v. Marvel Entertainment, LLC.

The Court addressed whether a license agreement that imposes royalties for post-expiration use of a patent is enforceable. The Court held that it is not.

Kimble simply adheres to 51-year old precedent, Brulotte v. Thys Co. As such, Kimble is neutral as to substantive patent law.

Having said that, Kimble is not pro-patent to the extent, if at all, it interferes with efficient use of patents as assets. This concern was raised by the dissent and has been raised by commentators focused on economic or marketplace circumstances. The reality, however, is that creative, competent lawyering effectively can address most, if not all, of those circumstances.