Marvel and Stephen Kimble are getting their day in court, as Stephen Kimble, et al., Petitioners v. Marvel Enterprises, Inc. will be heard before the Supreme Court on March 31. It’s one of two cases before the court that day.

The case involves toys and whether the petitioner is getting the correct royalties for the design concerning a Spider-Man webshooter toy. It involves a 50-year-old rule about how inventors can profit off of their patent.

The question before the court, directly from their website is:

Petitioners are individuals who assigned a patent and conveyed other intellectual property rights to Respondent. The court of appeals “reluctantly” held that Respondent, a large business concern, was absolved of its remaining financial obligations to Petitioners because of “a technical detail that both parties regarded as insignificant at the time of the agreement.” App. 2-3; 23. Specifically, because royalty payments under the parties’ contract extended undiminished beyond the expiration date of the assigned patent, Respondent’s obligation to pay was excused under Brulotte v. Thys Co., 379 U.S. 29, 32 (1964), which had held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.”

A product of a bygone era, Brulotte is the most widely criticized of this Court’s intellectual property and competition law decisions. Three panels of the courts of appeals (including the panel below), the Justice Department, the Federal Trade Commission, and virtually every treatise and article in the field have called on this Court to reconsider Brulotte, and to replace its rigid per se prohibition on post–expiration patent royalties with a contextualized rule of reason analysis.

The short version, should the Supreme Court overrule Brulotte v. Thys Co., 379 U.S. 29, 32 (1964). We’ll continue to follow the case closely.

While everyone was watching the Marvel vs. Kirby case, and whether that would be heard by the Supreme Court, we were focused on another case. When we last reported in October, Marvel was still waiting to hear their fate in Stephen Kimble, et al., Petitioners v. Marvel Enterprises, Inc.

The case involves toys and whether the petitioner is getting the correct royalties for the design concerning a Spider-Man webshooter toy. It involves a 50-year-old rule about how inventors can profit off of their patent.

The Supreme Court has updated the status of the case as “petition granted.” That means four of the justices have decided that the circumstances described in the petition merit review by the court.

The case will likely be heard some time this coming spring, and of course we’ll be covering all the details.

We’ve reached out to Marvel for comment.

Updated: Marvel has responded for our request for comment and said they can not comment at this time.

While everyone was watching the Marvel vs. Kirby case, and whether that would be heard by the Supreme Court, we were focused on another case. When we last reported in October, Marvel was still waiting to hear their fate in Stephen Kimble, et al., Petitioners v. Marvel Enterprises, Inc.

The case involves toys and whether the petitioner is getting the correct royalties for the design concerning a Spider-Man webshooter toy. It involves a 50-year-old rule about how inventors can profit off of their patent.

As you can see on the Supreme Court’s own website, the case is being discussed, with no official announcement or update on the case. As of December 8, the case had been distributed for conference, basically the Justices are taking a look at the case and deciding what to do. This is the fourth time that this has been done so, and at times the court has asked for more information to decide what to do. Counsel Press estimates the court only discusses 20-25% of the cases sent to conference. Basically, the court has been asked to hear the case, and the court is deciding if they will grant oral arguments.

Scotusblog is reporting we’ll officially know the fate of the case on Monday at 9:30am, but that Marvel and Kimble will indeed be heard before the court. Law360 is also reporting the news as well.