United States:
Brulotte Per Se Ban On Post-Expiration Royalties Remains But Options For Negotiating Post-Expiration Payments Exist
13 May 2016
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
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More than sixty years after deciding Brulotte v. Thys
Co., the Supreme Court revisited the issue of post-expiration
patent royalties in Kimble v. Marvel Entertainment LLC.
Despite fifty years of unrelenting criticism, the Supreme Court
declined to abandon Brulotte's per se ban on patent licenses
extending royalties beyond expiration of the patent. In this
article,
Gracie K. Mills and
Jessica L. Roberts, Ph.D. recap Brulotte, explore
Marvel's impact on the per se ban, and offers
practical tips for maximizing flexibility in negotiating patent
licenses within the Brulotte framework.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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