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Tucson inventor’s fight over Spider-Man toy lands before Supreme Court

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WASHINGTON – More than 20 years ago, Tucson resident Stephen Kimble was spending some quality time with his son, reading comic books and looking to “make something cool.”

Out of that came a Spider-Man-themed web shooter toy – and a Supreme Court case.

“Boy, that was the last thing in my mind,” Kimble said Tuesday as he stood in front of the court.

That’s where attorneys for Kimble and for Marvel Entertainment LLC squared off over a decades-old ruling by the court under which the comic company has stopped paying royalties for the web-shooter to Kimble, whose patent on the toy expired.

Kimble secured patent No. 5,072,856 for his toy, which shoots foam string from a wristband, in 1991, according to court documents. Marvel later designed and marketed a similar gadget, the “Web Blaster.”

In 2001, after years of court battles, Marvel agreed to purchase Kimble’s patent for $516,214.62 and to pay him a 3 percent royalty on “net product sales” of the toy.

In another round of legal wrangling between the two in 2006, Marvel asked a federal court to declare that the company would not have to pay royalties once Kimble’s patent expired in 2010. They cited a 1964 Supreme Court decision that said it is unlawful to require payment of royalties on products sold after a patent expires, and lower courts agreed.

That decision, Brulotte v. Thys Co., was the center of Tuesday’s hearing. Kimble’s attorney, Roman Melnik, asked the justices to overrule their previous ruling, which would in turn require Marvel to continue making royalty payments to his client.

“Brulotte is widely recognized as an outdated and misguided decision that prohibits royalty arrangements that are frequently socially beneficial,” Melnik told the justices.

But Justice Elena Kagan said the court typically does not stray from precedent unless it can be shown that a previous decision is either “unworkable” or a “relic of a past system that is utterly out of kilter.”

“It may or may not be right, but there’s nothing incredibly sort of weird and anomalous about it,” Kagan said. “I mean, usually we look for things like that. And where are those things?”

Kagan suggested that even if the previous decision has created poor economic consequences, “it’s Congress that’s better positioned to assess the real-world impact, and it’s Congress that’s better positioned to say whether these economic theories are indeed so naive.”

Marvel’s attorney, Thomas Saunders, argued that the justices should stick with precedent.

But Chief Justice John Roberts was quick to remind Saunders that the court has often overruled previous decisions – a number of them from the 1960s, just like Brulotte v. Thys Co.

He also noted that “economists are almost unanimous that this is a very bad rule.”

After the hearing, Melnik said he was “cautiously optimistic.” The court will likely release a decision before its recess in July.

Kimble was beaming.

Outside the court, he called the hearing “a day for inventors, for innovators, for the little guy.”

“Where else but in America can a little guy have his day in court against a big giant company?” Kimble said. “So, however it turns out I’m pleased that we had a chance to really voice our side.”

And regardless of the outcome of the case – your friendly neighborhood inventor has a public service announcement.

“I think you should still buy those Spider-Man toys, though,” Kimble said.