Category Archives: intellectual property

Uncle Ben at the Supreme Court

Thanks to Joe, Josh, and others for pointing out Justice Kagan’s quotation in yesterday’s decision in Kimble v. Marvel:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.

I happen to disagree with the majority’s decision; Brulotte v. Thys was wrongly decided*, and the Court wasted a rare opportunity to correct a mistake.  So on the one hand the citation and other references to Spider-Man were fun, but on the other hand it felt a little too cute by half for a decision that will ultimately result in Marvel (now part of the second largest media company in the world) avoiding royalty payments to an individual inventor whose idea Marvel (apparently) pretty blatantly ripped off.  The tone of the opinion is incongruous with its consequences.

It may seem a little overly dramatic in a case that is ultimately about money, but I am reminded of Robert Cover’s Violence and the Word:

Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.

This is not to say that all judicial writing should be humorless.  I have enjoyed reading any number of funny, often acerbic opinions, but those opinions were usually written in response to parties that were themselves behaving badly or foolishly, and so deserved to be treated lightly or even mockingly.  In this case, however, the Court has sided with a multi-billion dollar corporation over an individual inventor and did so on fairly technical grounds.  The majority interpreted the law of stare decisis, and as a result Stephen Kimble lost his property (i.e. the contractual right to royalties from sales of the patented toy).  This does not seem like an appropriate occasion for such levity.

Stepping back off my soap box, I promise the next post will return to discussing the legal implications of comic book hijinks.

* A full discussion of why this is the case is beyond the scope of this blog, but if you’re interested, see the dissent in Kimble and Judge Posner’s opinion in Scheiber v. Dolby Labs.

Joint Inventorship at the Movies

Nathaniel Lucek, a patent attorney at Hodgson Russ LLP, and Cheryl Junker, a Licensing Manager at the University of Georgia, wrote this great piece on joint inventorship issues raised in various movie scenarios.  Examples are drawn from several movies, including comic book adaptations The Dark KnightThe Dark Knight Rises, and Iron Man 2. The article does a great job of combining two of my favorite things: legal analysis of fictional scenarios and patent law.  Check it out!

Nova’s Complex Legal History

Although the Guardians of the Galaxy movie did not feature a specific character identifiable as the superhero Nova (e.g. Richard Rider), it did feature the Nova Corps, and there have been indications that Nova may make an appearance in a sequel.  It turns out that the character of Nova has an interesting legal history, one that attorney Britton Payne has written a great post about on his copyright blog, Copyright On.  Check it out!

Law and the Multiverse Retcon #8: Orphan Black…Again

This is the eighth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Or older retcon posts, since not longer after I wrote this Orphan Black Retcon I saw Season 2 Episode 5, which further complicated matters.  Soon after that I received an email asking about it, and I knew I would have to write the first Retcon Retcon.  Spoilers ahead!

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Law Comics

Law Comics is a new webcomic series created by Julia Powles and illustrated by Ilias Kyriazis.  As described by Powles in this wired.co.uk article, it’s “a project steered by non-boring lawyers to render iconic legal cases in full-colour glory, accompanied by short, authoritative, whimsical texts. The aim is to animate the magnificent stories of law to engage and empower the curious public.”

The first issue of Law Comics, Alice in Patent Land, is about patentable subject matter, which is an issue near and dear to me.  I approve of Powles’s explanation of the topic and the recent Supreme Court case of Alice v. CLS Bank.  Being so close to the issue it’s a little hard for me to say how approachable the comic makes it to those who aren’t, but I think it does a good job.  And certainly I approve of using the medium of comics to discuss the law.  I look forward to the next issue.

(As far as I can tell Law Comics doesn’t have its own site yet, but the comic is available at the wired.co.uk article and the Alice in Patent Land link to Patently-O.)

George Mason Law Review Article

I promise I’ll be back to comic books soon, but I have another publication announcement, this time a law review article I co-authored with F. Scott Kieff: Benefits of Patent Jury Trials for Commercializing Innovation, 21 Geo. Mason L. Rev. 865 (2014).  The article is part of a special issue focused on commercializing innovation.  The entire issue is online and includes a host of great articles from scholars such as Joshua D. Wright (now a Commissioner at the FTC), Damien Geradin, and Anne Layne-Farrar.

Law and the Multiverse Retcon #6: Orphan Black Redux

This is the sixth post in the Law and the Multiverse Retcons series, in which I discuss changes in the law (or corrections in my analysis) that affect older posts.  Or not so old posts in this case.  Barely a week ago I wrote this post about the TV series Orphan Black.  Today the US Court of Appeals for the Federal Circuit handed down a decision relevant to that post.  Spoilers ahead!

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Orphan Black

A few readers asked about the TV series Orphan Black a while back.  Now that the show is in its second season (and I finally got around to watching the first one and have caught up with the second one), I thought I’d address the central legal questions raised by the show.  Moderate spoilers below if you haven’t seen past the first episode or so, followed by big spoilers if you haven’t seen the season one finale.

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Landslide Article

I recently co-authored an article with Professor Brad Desnoyer and Janet Fries discussing superhero-related intellectual property topics, both real and fictional.  Last month the article was published in Landslide, the magazine of the ABA section of IP law, as the cover story!  You can read the article for free online. Thanks to Brad and Janet for their excellent work on the article and to David Postolski for putting everything together.

She-Hulk #1

Marvel has started a new run of She-Hulk, written by practicing attorney Charles Soule.  In contrast to the somewhat further ranging series written by Dan Slott, this volume promises to focus somewhat more closely on Jennifer Walters’s day job.  So has Soule’s considerable legal experience allowed him to blend interesting stories and accurate legal detail?  Let’s take a look.

(Spoilers ahead: if you haven’t checked out the first issue (which is pretty good), go buy it.)

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