It is nice to see Justice Kagan is also a Legal Geek. The Friendly Neighborhood Justice spun a web of geekdom in following stare decisis over payments for an expired patent for toy Spider-Man web slingers. If the Justice wants to rival the late Chef Justice Rehnquist’s strips on his robe, we have an idea on a new judicial look a la Spider-Gwen (and the talented Jesse Toves).



Here are the basic facts of the case: the patent holder developed a Web Blaster toy and sued Marvel in 1997. The parties settled with Marvel purchasing the patent holder’s patent for a lump sum of about a half-million dollars and a 3% royalty on future sales of the toy. Kimble v. Marvel Entm’t, LLC, 2015 U.S. LEXIS 4067, *6 (U.S. June 22, 2015). In the words of the Court, “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).” Id.

Prior cases hold that patent laws prevent patentees from getting royalty sales after the expiration of the patent. Id. Marvel sought and won declaration judgment that they did not need to continue payments after the 20-year period.

The Supreme Court held for Marvel following decades of case law. Justice Kagan concluded the opinion with the following:

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.

Kimble, at *31.

My compliments to Justice Kagan in letting her Geek Flag fly in the opinion. Uncle Ben would be proud. The Justice has a standing invitation if she ever wants to write a guest post on The Legal Geeks. Moreover, I will be presenting at Salt Lake Comic Con on the Constitutional issues in Agents of SHIELD and Agent Carter. Justice Kagan would be more than welcome to join the panel if she would like to have bragging rights over Justice Ginsberg and Justice Scalia on unique speaking engagements.