Could Spider-Man toy help invent more life-saving drugs?
Challenge of patent law has support of scientists who rely on delayed payouts to fund research
A Spider-Man toy could help fuel the creation of life-saving drugs, if the US Supreme Court reverses a ruling from 1964 that prevents inventors from receiving royalties after their patents expire.
The inventor of the toy, Steve Kimble, faced off with Marvel in the highest US court on Tuesday. Kimble, who sold his patent for the toy to Marvel and was receiving royalties until 2010, when the parent expired, believes he should continue to receive three per cent of net product sales. Marvel believes that with the expiration of the patent, its obligation to pay Kimble is over.
In the 1990s, Kimble and his son came up with an idea for a toy that would enable kids to shoot Spider-Man's "webs" from their wrists. They tried to sell the idea to Toy Biz, now a division of Marvel Enterprises, which passed on it. Months later, when Toy Biz began to sell Web Blaster, Kimble sued it for patent infringement.
In 2001, to settle the lawsuit, Marvel bought the patent for more than US$516,000 and paid Kimble three per cent of net product sales.
When the patent expired in 2010, Kimble's royalty payments stopped. Prior to the expiration of the patent, Kimble had earned US$6 million in royalties.
Marvel's reason for stopping royalty payments is contained in the Supreme Court's 1964 ruling in Brulotte v Thys Co, which found that a patent holder cannot collect royalties after a patent expires. Lower courts, compelled by the Brulotte ruling, agreed that Marvel's obligation to Kimble was over. But despite finding for Marvel, Judge Consuelo Callahan of the ninth circuit in California, felt that Kimble got a raw deal to begin with.
