Supreme Court to Potentially Overrule the Brulotte Doctrine

The Brulotte doctrine was developed in Brulotte v. Thys Co., 379 U.S. 29 (1964), and maintains that a licensee’s obligations are cleared following the expiration of a patent. The Ninth Circuit recently acknowledged a criticism of the doctrine in Kimble v. Marvel Ent. Inc., U.S., No. 13-720, and the Supreme Court subsequently invited an amicus brief from the Solicitor General on the issue. The Solicitor General addressed the dispute in Kimble, where the question of whether Marvel was required to pay royalties for the sales of a popular toy that occurred after expiration of a purchased patent arose. The Solicitor General advised the Court not to review the case, arguing that Brulotte properly reflects the Court’s interpretation of the Patent Act and promotes the public’s unrestricted access to the contents of expired patents.