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David Hansen
Pramode Chiruvolu

Even casual observers will have noticed the Roberts Court has proactively tackled a large number of intellectual property issues in recent terms. This term is no exception, as the U.S. Supreme Court will address two important patent issues and has signaled its interest in a significant and complex issue concerning the copyrightability of computer code.

In Kimble v. Marvel, the court certified the question of whether it “should overrule Brulotte v. Thys Co., 379 U.S. 29 (1964), which held that a license agreement requiring royalty payments for use of a patented invention after the expiration of the patent term is unlawful per se.”

In Brulotte, the court held that to leverage the monopoly of a patent “beyond the life of the patent is analogous to an effort to enlarge the monopoly of the patent by tying the sale or use of the patented article to the purchase or use of unpatented ones.” Kimble argues that, given the court’s disavowal of the “patent equals market power” presumption, its recent move away from per se rules in favor of the contextual rule of reason in the antitrust context and changes to antitrust economic theory, the court should similarly abandon Brulotte‘s per se restriction against extending royalty payment beyond a patent’s term.

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