tag:blogger.com,1999:blog-5574479.post44350937025078061..comments2024-03-28T11:16:43.146+00:00Comments on The IPKat: Letter from AmeriKat: Spiderman's web ensnares the US Supreme Court in Kimble v MarvelVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-5574479.post-13060149585603556152015-07-01T12:06:52.422+01:002015-07-01T12:06:52.422+01:00Mark,
You too seem to want to make things more - ...Mark,<br /><br />You too seem to want to make things more - not less - complicated.<br /><br />The simplest way of looking at this is to separate the (common contractual) term of payment from the item (or to be more precise, the "time of vitality" of the item).<br /><br />Length of time for payments is a separate thing than length of time for that "time of vitality."<br /><br />You might also want to (in contrast to your article) note that the Supreme Court did admit that <i>Brulotte</i> IS bad law - just that it is bad law that they have decided not to change.THE US anonnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-76496522972426686582015-06-30T17:18:25.392+01:002015-06-30T17:18:25.392+01:00@THE US anon: by problematic, I meant in terms of ...@THE US anon: by problematic, I meant in terms of enforcement. I am doubtful whether an English judge would uphold a perpetual obligation to pay royalties, on public policy grounds, or would find a way around it, eg by saying that the agreement under which the obligation arises has an implied term that it can be terminated on reasonable notice.<br /><br />Your more general point is highlighted in the European Commission's comments on post-expiry royalties in the 2014 Guidelines on Technology Transfer Agreements, as quoted in my blog article at https://ipdraughts.wordpress.com/2015/06/27/post-expiry-royalties-whats-the-problem/ Markhttp://www.ipdraughts.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-16109252881028937052015-06-30T11:58:54.259+01:002015-06-30T11:58:54.259+01:00Mark,
I think that you overlook a critical point....Mark,<br /><br />I think that you overlook a critical point.<br /><br />The "problem" is ONLY for the entity that <b>voluntarily</b> entered into the contract.<br /><br />Everyone else in the universe IS free to do whatever they want to do with the item when the patent lapses.<br /><br />This is a subtle - but critical - distinction that is not often enough highlighted.THE US anonnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-61459383035252460472015-06-30T10:02:27.684+01:002015-06-30T10:02:27.684+01:00@Anonymous 8:33. Perhaps. Purely contractual "...@Anonymous 8:33. Perhaps. Purely contractual "royalties" are sometimes seen, that are not linked to use of IP and are simply consideration. In those cases, a perpetual royalty is still problematic. But where the consideration is so clearly linked to use of a patent, I am not surprised that the court considers that the issue is the same as in the case of patent licensing.Markhttp://www.ipdraughts.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-88561865594875963692015-06-30T08:33:52.723+01:002015-06-30T08:33:52.723+01:00What I do not quite get from this review is that t...What I do not quite get from this review is that the "royalty" can have little to do with the patent being in existence. Since Marvel took ownership of the patent, there can be no concept of the payment of a patent royalty for its use. Rather, in order to avoid having to remove the product from the market, Marvel agreed to pay 3% of future sales in return for the patent. Without the springboard of allowing sales during the life of the patent, it is quite unlikely there would have been a product on the market after the patent expired and so the continuing duty to pay is a reasonable consideration.<br /><br />Would no payment have been due if Marvel simply allowed the patent to lapse? Unlikely. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-2779660287502201942015-06-30T04:48:04.360+01:002015-06-30T04:48:04.360+01:00Awhile back I did a study on Supreme Court decisio...Awhile back I did a study on Supreme Court decisions being overturned (it happens a lot more than most people realize).<br /><br />One of the largest indicators of legislative overturning was the presence of "signaling" from the Court that the legislature may make that decision. This is what I call "let them have the blood on their hands."THE US anonnoreply@blogger.com