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Monday, June 22, 2015

The Supreme Court's "Superspecial" Kimble Opinion

Today, the Supreme Court released several opinions, including Kimble v. Marvel Entertainment. Kimble involves the question of whether a party may contract for payment of patent royalties after the patent's expiration. The opinion has attracted a great deal of attention -- not due to its answering this question in the negative and adhering to the precedent set in Brulotte v. Thys Co., 379 U.S. 29 (1964) -- but instead because of its numerous references to Spider-Man and superheroes. The case, after all, includes Marvel Entertainment as a party, and concerns "a toy that allows children (and young-at-heart adults) to role-play as 'a spider person' by shooting webs—really, pressurized foam string—“from the palm of [the] hand.'"

For example, in the concluding paragraphs of the majority opinion, Justice Kagan notes;

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: “SpiderMan,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”).
Coverage noting the references in Justice Kagan's majority opinion can be found here, here, here, and here.

Also of note is this paragraph:

As against this superpowered form of stare decisis, we would need a superspecial justification to warrant reversing Brulotte. But the kinds of reasons we have most often held sufficient in the past do not help Kimble here. If anything, they reinforce our unwillingness to do what he asks.
After a bit of searching, it appears that this is the first federal court opinion to use the word "superspecial." A few other opinions contain the hyphenated phrase, "super-special" -- often as part of a quotation -- but Kimble is the first to employ the single-word term. Kimble also appears to be the first Supreme Court opinion to use the term, "superpowered." Several opinions in the lower court have employed this phrase (see, e.g., Twentieth Century Fox Film Corporation v. Marvel Enterprises, Inc., 277 F.3d 253, 255 (2002) ("In 1963, Marvel began publishing a comic book series entitled 'X-Men,' featuring a group of young, superpowered mutants led by Professor X, an older, superintelligent leader who sought to train his students and to protect them from a hostile society.")). But Justice Kagan's majority opinion appears to be the first instance of the Supreme Court using this word.

Kimble concerns a technical subject. But due to Justice Kagan's marvelous writing and references, the opinion is a delight to read.

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