A majority of the Supreme Court (SCOTUS) on 22 June let stand a 51-year precedent on patent royalties and told plaintiffs that if they want the rule changed, they should appeal to Congress, not the courts.

While some attorneys welcomed the consistency of the court in upholding the so-called “Brulotte rule” precedent, others said that SCOTUS failed to take into account the evolution of law and economics since that rule was enunciated in the 1964 SCOTUS decision in Brulotte v. Thys Company.

In Kimble v Marvel Entertainment decided on 22 June, Justice Elena Kagan, writing for the majority, noted that: “Patents endow their holders with certain superpowers, but only for a limited time.” Kagan said majority based its decision on the doctrine of stare decisis, which means that it followed rules or precedent enunciated in prior judicial decisions on the same issues or facts. “Critics of the Brulotte rule must seek relief not from this Court but from Congress,” Kagan wrote.

Brian LaCorte, a patent litigation partner at Ballard Spahr which was not involved in the case, said that disagreement with the economic theory underlying Brulotte should not be the basis to overturn long-standing legal precedent.


Related Practice