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SUPREME COURT OF THE UNITED STATES
_________________
No. 13–720
_________________
STEPHEN KIMBLE, et al., PETITIONERS
v. MARVEL ENTERTAINMENT, LLC, successor to MARVEL
ENTERPRISES, INC.
on writ of certiorari to the united states
court of appeals for the ninth circuit
[June 22, 2015]
Justice Kagan delivered the opinion of the
Court.
In
Brulotte v.
Thys Co., 379
U. S. 29 (1964) , this Court held that a patent holder cannot
charge royalties for the use of his invention after its patent term
has expired. The sole question presented here is whether we should
overrule
Brulotte. Adhering to principles of
stare
decisis, we decline to do so. Critics of the
Brulotte
rule must seek relief not from this Court but from Congress.
I
In 1990, petitioner Stephen Kimble obtained a
patent on 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.” U. S. Patent No. 5,072,856,
Abstract (filed May 25, 1990).[
1] Respondent Marvel Entertainment, LLC (Marvel) makes and
markets products featuring Spider-Man, among other comic-book
characters. Seeking to sell or license his patent, Kimble met with
the president of Marvel’s corporate predecessor to discuss
his idea for web-slinging fun. Soon afterward, but without
remunerating Kimble, that com-pany began marketing the “Web
Blaster”—a toy that, like Kimble’s patented
invention, enables would-be action heroes to mimic Spider-Man
through the use of a polyester glove and a canister of foam.
Kimble sued Marvel in 1997 alleging, among other
things, patent infringement. The parties ultimately settled that
litigation. Their agreement provided that Marvel would purchase
Kimble’s patent in exchange for a lump sum (of about a
half-million dollars) and a 3% royalty on Marvel’s future
sales of the Web Blaster and similar products. The parties set no
end date for royalties, apparently contemplating that they would
continue for as long as kids want to imitate Spider-Man (by doing
whatever a spider can).
And then Marvel stumbled across
Brulotte,
the case at the heart of this dispute. In negotiating the
settlement, neither side was aware of
Brulotte. But Marvel
must have been pleased to learn of it.
Brulotte had read the
patent laws to prevent a patentee from receiving royalties for
sales made after his patent’s expiration. See 379 U. S.,
at 32. So the decision’s effect was to sunset the
settlement’s royalty clause.[
2] On making that discovery, Marvel sought a declaratory
judgment in federal district court confirming that the company
could cease paying royalties come 2010—the end of
Kimble’s patent term. The court approved that relief, holding
that
Brulotte made “the royalty provision
. . . unenforceable after the expiration of the Kimble
patent.” 692 F. Supp. 2d 1156, 1161 (Ariz. 2010). The
Court of Appeals for the Ninth Circuit affirmed, though making
clear that it was none too happy about doing so. “[T]he
Brulotte rule,” the court complained, “is
counterintuitive and its rationale is arguably unconvincing.”
727 F. 3d 856, 857 (2013)
.
We granted certiorari, 574 U. S. ___
(2014), to decide whether, as some courts and commentators have
suggested, we should overrule
Brulotte.[
3] For reasons of
stare decisis, we
demur.
II
Patents endow their holders with certain
superpowers, but only for a limited time. In crafting the patent
laws, Congress struck a balance between fostering innovation and
ensuring public access to discoveries. While a patent lasts, the
patentee possesses exclusive rights to the patented
article—rights he may sell or license for royalty payments if
he so chooses. See 35 U. S. C. §154(a)(1). But a
patent typically expires 20 years from the day the application for
it was filed. See §154(a)(2). And when the patent expires, the
patentee’s prerogatives expire too, and the right to make or
use the article, free from all restriction, passes to the public.
See
Sears, Roebuck & Co. v.
Stiffel Co., 376
U. S. 225, 230 (1964) .
This Court has carefully guarded that cut-off
date, just as it has the patent laws’ subject-matter limits:
In case after case, the Court has construed those laws to preclude
measures that restrict free access to formerly patented, as well as
unpatentable, inventions. In one line of cases, we have struck down
state statutes with that consequence. See,
e.g., id.,
at 230–233;
Bonito Boats, Inc. v.
Thunder Craft
Boats, Inc., 489 U. S. 141 –168 (1989);
Compco
Corp. v.
Day-Brite Lighting, Inc., 376 U. S. 234
–238 (1964). By virtue of federal law, we reasoned, “an
article on which the patent has expired,” like an
unpatentable article, “is in the public domain and may be
made and sold by whoever chooses to do so.”
Sears, 376
U. S., at 231. In a related line of decisions, we have deemed
unenforceable private contract provisions limiting free use of such
inventions. In
Scott Paper Co. v.
Marcalus Mfg. Co.,
326 U. S. 249 (1945) , for example, we determined that a
manufacturer could not agree to refrain from challenging a
patent’s validity. Allowing even a single com-pany to
restrict its use of an expired or invalid patent, we explained,
“would deprive . . . the consuming public of the
advantage to be derived” from free exploitation of the
discovery.
Id., at 256. And to permit such a result, whether
or not authorized “by express contract,” would
impermissibly undermine the patent laws.
Id., at
255–256; see also,
e.g., Edward Katzinger Co. v.
Chicago Metallic Mfg. Co., 329 U. S. 394 –401
(1947) (ruling that
Scott Paper applies to licensees);
Lear, Inc. v.
Adkins, 395 U. S. 653 –675
(1969) (refusing to enforce a contract requiring a licensee to pay
royalties while contesting a patent’s validity).
Brulotte was brewed in the same barrel.
There, an inventor licensed his patented hop-picking machine to
farmers in exchange for royalties from hop crops harvested both
before and after his patents’ expiration dates. The Court (by
an 8-1 vote) held the agreement unenforceable—“unlawful
per se”—to the extent it provided for the
payment of royalties “accru[ing] after the last of the
patents incorporated into the machines had expired.” 379
U. S., at 30, 32. To arrive at that conclusion, the Court
began with the statutory provision setting the length of a patent
term. See
id., at 30 (quoting the then-current version of
§154). Emphasizing that a patented invention “become[s]
public property once [that term] expires,” the Court then
quoted from
Scott Paper: Any attempt to limit a
licensee’s post-expiration use of the invention,
“whatever the legal device employed, runs counter to the
policy and purpose of the patent laws.” 379 U. S., at 31
(quoting 326 U. S., at 256). In the
Brulotte
Court’s view, contracts to pay royalties for such use
continue “the patent monopoly beyond the [patent]
period,” even though only as to the licensee affected. 379
U. S.
, at 33. And in so doing, those agreements
conflict with patent law’s policy of establishing a
“post-expiration . . . public domain” in which every
person can make free use of a formerly patented product.
Ibid.
The
Brulotte rule, like others making
contract provisions unenforceable, prevents some parties from
entering into deals they desire. As compared to lump-sum fees,
royalty plans both draw out payments over time and tie those
payments, in each month or year covered, to a product’s
commercial success. And sometimes, for some parties, the longer the
arrangement lasts, the better—not just up to but beyond a
patent term’s end. A more extended payment period, coupled
(as it presumably would be) with a lower rate, may bring the price
the patent holder seeks within the range of a cash-strapped
licensee. (Anyone who has bought a product on installment can
relate.) See Brief for Memorial Sloan Kettering Cancer Center
et al. as
Amici Curiae 17. Or such an extended term may
better allocate the risks and rewards associated with
commercializing inventions—most notably, when years of
development work stand between licensing a patent and bringing a
product to market. See,
e.g., 3 R. Milgrim & E. Bensen,
Milgrim on Licensing §18.05, p. 18–9 (2013). As to
either goal,
Brulotte may pose an obstacle.
Yet parties can often find ways around
Brulotte, enabling them to achieve those same ends. To
start,
Brulotte allows a licensee to defer payments for
pre-expiration use of a patent into the post-expiration period; all
the decision bars are royalties for using an invention after it has
moved into the public domain. See 379 U. S., at 31;
Zenith
Radio Corp. v.
Hazeltine Research, Inc., 395 U. S.
100, 136 (1969) . A licensee could agree, for example, to pay the
licensor a sum equal to 10% of sales during the 20-year patent
term, but to amortize that amount over 40 years. That arrangement
would at least bring down early outlays, even if it would not do
everything the parties might want to allocate risk over a long
timeframe. And parties have still more options when a licensing
agreement covers either multiple patents or additional non-patent
rights. Under
Brulotte, royalties may run until the
latest-running patent covered in the parties’ agreement
expires. See 379 U. S., at 30. Too, post-expiration royalties
are allowable so long as tied to a non-patent right—even when
closely related to a patent. See,
e.g., 3 Milgrim on
Licensing §18.07, at 18–16 to 18–17. That means,
for example, that a license involving both a patent and a trade
secret can set a 5% royalty during the patent period (as
compensation for the two combined) and a 4% royalty afterward (as
payment for the trade secret alone). Finally and most broadly,
Brulotte poses no bar to business arrangements other than
royalties—all kinds of joint ventures, for example—that
enable parties to share the risks and rewards of commercializing an
invention.
Contending that such alternatives are not
enough, Kimble asks us to abandon
Brulotte in favor of
“flexible, case-by-case analysis” of post-expiration
royalty clauses “under the rule of reason.” Brief for
Petitioners 45. Used in antitrust law, the rule of reason requires
courts to evaluate a practice’s effect on competition by
“taking into account a variety of factors, including specific
information about the relevant business, its condition before and
after the [practice] was imposed, and the [practice’s]
history, nature, and effect.”
State Oil Co. v.
Khan, 522 U. S. 3, 10 (1997) . Of primary importance in
this context, Kimble posits, is whether a patent holder has power
in the relevant market and so might be able to curtail competition.
See Brief for Petitioners 47–48;
Illinois Tool Works
Inc. v.
Independent Ink, Inc., 547 U. S. 28, 44
(2006) (“[A] patent does not necessarily confer market
power”). Resolving that issue, Kimble notes, entails “a
full-fledged economic inquiry into the definition of the market,
barriers to entry, and the like.” Brief for Petitioners 48
(quoting 1 H. Hovenkamp, M. Janis, M. Lemley, & C. Leslie, IP
and Antitrust §3.2e, p. 3–12.1 (2d ed., Supp. 2014)
(Hovenkamp)).
III
Overruling precedent is never a small matter.
Stare decisis—in English, the idea that today’s
Court should stand by yesterday’s decisions—is “a
foundation stone of the rule of law.”
Michigan v.
Bay Mills Indian Commu-nity, 572 U. S. ___, ___ (2014)
(slip op., at 15). Application of that doctrine, although
“not an inexorable command,” is the “preferred
course because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived
integrity of the judicial process.”
Payne v.
Tennessee, 501 U. S. 808 –828 (1991). It also reduces
incentives for challenging settled precedents, saving parties and
courts the expense of endless relitigation.
Respecting
stare decisis means sticking
to some wrong decisions. The doctrine rests on the idea, as Justice
Brandeis famously wrote, that it is usually “more important
that the applicable rule of law be settled than that it be settled
right.”
Burnet v.
Coronado Oil & Gas Co.,
285 U. S. 393, 406 (1932) (dissenting opinion). Indeed,
stare decisis has consequence only to the extent it sustains
incorrect decisions; correct judgments have no need for that
principle to prop them up. Accordingly, an argument that we got
something wrong—even a good argument to that
effect—cannot by itself justify scrapping settled precedent.
Or otherwise said, it is not alone sufficient that we would decide
a case differently now than we did then. To reverse course, we
require as well what we have termed a “special
justification”—over and above the belief “that
the precedent was wrongly decided.”
Halliburton Co. v.
Erica P. John Fund, Inc., 573 U. S. ___, ___ (2014)
(slip op., at 4).
What is more,
stare decisis carries
enhanced force when a decision, like
Brulotte, interprets a
statute. Then, unlike in a constitutional case, critics of our
ruling can take their objections across the street, and Congress
can correct any mistake it sees. See,
e.g., Patterson v.
McLean Credit Union, 491 U. S. 164 –173 (1989). That
is true, contrary to the dissent’s view, see
post, at
6–7 (opinion of Alito, J.), regardless whether our decision
focused only on statutory text or also relied, as
Brulotte
did, on the policies and purposes animating the law. See,
e.g., Bilski v.
Kappos, 561 U. S. 593
–602 (2010). Indeed, we apply statutory
stare decisis
even when a decision has announced a “judicially created
doctrine” designed to implement a federal statute.
Halliburton, 573 U. S., at ___ (slip op., at 12). All
our interpretive decisions, in whatever way reasoned, effectively
become part of the statutory scheme, subject (just like the rest)
to congressional change. Absent special justification, they are
balls tossed into Congress’s court, for acceptance or not as
that branch elects.
And Congress has spurned multiple opportunities
to reverse
Brulotte—openings as frequent and clear as
this Court ever sees.
Brulotte has governed licensing
agreements for more than half a century. See
Watson v.
United States, 552 U. S. 74 –83 (2007) (stating that
“long congressional acquiescence,” there totaling just
14 years, “enhance[s] even the usual precedential force we
accord to our interpretations of statutes” (internal
quotation marks omitted)). During that time, Congress has
repeatedly amended the patent laws, including the specific
provision ( 35 U. S. C. §154) on which
Brulotte rested. See,
e.g., Uruguay Round Agreements
Act, §532(a), 108Stat. 4983 (1994) (increasing the length of
the patent term); Act of Nov. 19, 1988, §201, 102Stat. 4676
(limiting patent-misuse claims).
Brulotte survived every
such change. Indeed, Congress has rebuffed bills that would have
replaced
Brulotte’s
per se rule with the
same antitrust-style analysis Kimble now urges. See,
e.g.,
S. 1200, 100th Cong., 1st Sess., Tit. II (1987) (providing that no
patent owner would be guilty of “illegal extension of the
patent right by reason of his or her licensing practices
. . . unless such practices . . . violate the
antitrust laws”); S. 438, 100th Cong., 2d Sess., §201(3)
(1988) (same). Congress’s continual reworking of the patent
laws—but never of the
Brulotte rule—further
supports leaving the decision in place.
Nor yet are we done, for the subject matter of
Brulotte adds to the case for adhering to precedent.
Brulotte lies at the intersection of two areas of law:
property (patents) and contracts (licensing agreements). And we
have often recognized that in just those
contexts—“cases involving property and contract
rights”—considerations favoring
stare decisis
are “at their acme.”
E.g., Payne, 501 U. S., at
828;
Khan, 522 U. S., at 20. That is because parties
are especially likely to rely on such precedents when ordering
their affairs. To be sure, Marvel and Kimble disagree about whether
Brulotte has actually generated reliance. Marvel says yes:
Some parties, it claims, do not specify an end date for royalties
in their licensing agreements, instead relying on
Brulotte
as a default rule. Brief for Respondent 32–33; see 1 D.
Epstein, Eckstrom’s Licensing in Foreign and Domestic
Operations §3.13, p. 3–13, and n. 2 (2014)
(noting that it is not “necessary to specify the term
. . . of the license” when a decision like
Brulotte limits it “by law”). Overturning
Brulotte would thus upset expectations, most so when
long-dormant licenses for long-expired patents spring back to life.
Not true, says Kimble: Unfair surprise is unlikely, because no
“meaningful number of [such] license agreements
. . . actually exist.” Reply Brief 18. To be
honest, we do not know (nor, we suspect, do Marvel and Kimble). But
even uncertainty on this score cuts in Marvel’s direction. So
long as we see a reasonable possibility that parties have
structured their business transactions in light of
Brulotte,
we have one more reason to let it stand.
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.
First,
Brulotte’s statutory and
doctrinal underpinnings have not eroded over time. When we reverse
our statutory interpretations, we most often point to subsequent
legal developments—“either the growth of judicial
doctrine or further action taken by Congress”—that have
removed the basis for a decision.
Patterson, 491 U. S., at
173 (calling this “the primary reason” for overruling
statutory precedent). But the core feature of the patent laws on
which
Brulotte relied remains just the same: Section 154
now, as then, draws a sharp line cutting off patent rights after a
set number of years. And this Court has continued to draw from that
legislative choice a broad policy favoring unrestricted use of an
invention after its patent’s expiration. See
supra, at
3–4.
Scott Paper—the decision on which
Brulotte primarily relied—remains good law. So too do
this Court’s other decisions refusing to enforce either state
laws or private contracts constraining individuals’ free use
of formerly patented (or unpatentable) discoveries. See
supra, at 3–4.
Brulotte, then, is not the kind
of doctrinal dinosaur or legal last-man-standing for whichwe
sometimes depart from
stare decisis. Compare,
e.g.,
Alleyne v.
United States, 570 U. S. ___,
___–___ (2013) (Sotomayor, J., concurring) (slip op., at
2–5). To the contrary, the decision’s close relation to
a whole web of precedents means that reversing it could threaten
others. If
Brulotte is outdated, then (for example) is
Scott Paper too? We would prefer not to unsettle stable
law.[
4]
And second, nothing about
Brulotte has
proved unworkable. See,
e.g., Patterson, 491 U. S.,
at 173 (identifying unworkability as another “traditional
justification” for overruling precedent). The decision is
simplicity itself to apply. A court need only ask whether a
licensing agreement provides royalties for post-expiration use of a
patent. If not, no problem; if so, no dice.
Brulotte’s
ease of use appears in still sharper relief when compared to
Kimble’s proposed alternative. Recall that he wants courts
toemploy antitrust law’s rule of reason to identify and
invali-date those post-expiration royalty clauses with
anti-competitive consequences. See
supra, at 6–7. But
whatever its merits may be for deciding antitrust claims, that
“elaborate inquiry” produces notoriously high
litigation costs and unpredictable results.
Arizona v.
Maricopa County Medical Soc., 457 U. S. 332, 343 (1982) .
For that reason, trading in
Brulotte for the rule of reason
would make the law less, not more, workable than it is now. Once
again, then, the case for sticking with long-settled precedent
grows stronger: Even the most usual reasons for abandoning
stare
decisis cut the other way here.
IV
Lacking recourse to those traditional
justifications for overruling a prior decision, Kimble offers two
different ones. He claims first that
Brulotte rests on a
mistaken view of the competitive effects of post-expiration
royalties. He contends next that
Brulotte suppresses
technological innovation and so harms the nation’s economy.
(The dissent offers versions of those same arguments. See
post, at 1–4.) We consider the two claims in turn, but
our answers to both are much the same: Kimble’s reasoning may
give Congress cause to upset
Brulotte, but does not warrant
this Court’s doing so.
A
According to Kimble, we should overrule
Brulotte because it hinged on an error about economics: It
assumed that post-patent royalty “arrangements are invariably
anticompetitive.” Brief for Petitioners 37. That is not true,
Kimble notes; indeed, such agreements more often increase than
inhibit competition, both before and after the patent expires. See
id., at 36–40. As noted earlier, a longer payment
period will typically go hand-in-hand with a lower royalty rate.
See
supra, at 5. During the patent term, those reduced rates
may lead to lower consumer prices, making the patented technology
more competitive with alternatives; too, the lesser rates may
enable more companies to afford a license, fostering competition
among the patent’s own users. See Brief for Petitioners 38.
And after the patent’s expiration, Kimble continues, further
benefits follow: Absent high barriers to entry (a material caveat,
as even he would agree, see Tr. of Oral Arg. 12–13, 23), the
licensee’s continuing obligation to pay royalties encourages
new companies to begin making the product, figuring that they can
quickly attract customers by undercutting the licensee on price.
See Brief for Petitioners 38–39. In light of those realities,
Kimble concludes, “the
Brulotte per se rule makes
little sense.”
Id., at 11.
We do not join issue with Kimble’s
economics—only with what follows from it. A broad scholarly
consensus supports Kimble’s view of the competitive effects
of post-expiration royalties, and we see no error in that shared
analysis. See
id., at 13–18 (citing numerous treatises
and articles critiquing
Brulotte). Still, we must decide
what that means for
Brulotte. Kimble, of course, says it
means the decision must go. Positing that
Brulotte turned on
the belief that post-expiration royalties are always
anticompetitive, he invokes decisions in which this Court abandoned
antitrust precedents premised on similarly shaky economic
reasoning. See Brief for Petitioners 55–56 (citing,
e.g.,
Leegin Creative Leather Products, Inc. v.
PSKS, Inc., 551 U. S. 877 (2007) ;
Illinois Tool
Works, 547 U. S. 28 ). But to agree with Kimble’s
conclusion, we must resolve two questions in his favor. First, even
assuming Kimble accurately characterizes
Brulotte’s
basis, does the decision’s economic mistake suffice to
overcome
stare decisis? Second and more fundamentally, was
Brulotte actually founded, as Kimble contends, on an
analysis of competitive effects?
If
Brulotte were an antitrust rather than
a patent case, we might answer both questions as Kimble would like.
This Court has viewed
stare decisis as having
less-than-usual force in cases involving the Sherman Act. See,
e.g., Khan, 522 U. S., at 20–21. Congress, we have
explained, intended that law’s reference to “restraint
of trade” to have “changing content,” and
authorized courts to oversee the term’s “dynamic
potential.”
Business Electronics Corp. v.
Sharp
Electronics Corp., 485 U. S. 717 –732 (1988). We
have therefore felt relatively free to revise our legal analysis as
economic understanding evolves and (just as Kimble notes) to
reverse antitrust precedents that misperceived a practice’s
competitive consequences. See
Leegin, 551 U. S., at
899–900. Moreover, because the question in those cases was
whether the challenged activity restrained trade, the Court’s
rulings necessarily turned on its understanding of economics. See
Business Electronics Corp., 485 U. S., at 731.
Accordingly, to overturn the decisions in light of sounder economic
reasoning was to take them “on [their] own terms.”
Halliburton, 573 U. S., at ___ (slip op., at 9).
But
Brulotte is a patent rather than an
antitrust case, and our answers to both questions instead go
against Kimble. To begin, even assuming that
Brulotte relied
on an economic misjudgment, Congress is the right entity to fix it.
By contrast with the Sherman Act, the patent laws do not turn over
exceptional law-shaping authority to the courts. Accordingly,
statutory
stare decisis—in which this Court interprets
and Congress decides whether to amend—retains its usual
strong force. See
supra, at 8. And as we have shown, that
doctrine does not ordinarily bend to “wrong on the
merits”-type arguments; it instead assumes Congress will
correct whatever mistakes we commit. See
supra, at
7–8. Nor does Kimble offer any reason to think his own
“the Court erred” claim is special. Indeed, he does not
even point to anything that has changed since
Brulotte—no new empirical studies or advances in
economic theory. Compare,
e.g., Halliburton, 573 U. S.,
at ___ (slip op., at 9–12) (considering, though finding
insufficient, recent economic research). On his argument, the
Brulotte Court knew all it needed to know to determine that
post-patent royalties are not usually anticompetitive; it just made
the wrong call. See Brief for Petitioners 36–40. That claim,
even if itself dead-right, fails to clear
stare
decisis’s high bar.
And in any event,
Brulotte did not hinge
on the mistake Kimble identifies. Although some of its language
invoked economic concepts, see n. 4,
supra, the Court
did not rely on the notion that post-patent royalties harm
competition. Nor is that surprising. The patent laws—unlike
the Sherman Act—do not aim to maximize competition (to a
large extent, the opposite). And the patent term—unlike the
“restraint of trade” standard—provides an
all-encompassing bright-line rule, rather than calling for
practice-specific analysis. So in deciding whether post-expiration
royalties comport with patent law,
Brulotte did not
undertake to assess that practice’s likely competitive
effects. Instead, it applied a categorical principle that all
patents, and all benefits from them, must end when their terms
expire. See
Brulotte, 379 U. S., at 30–32;
supra, at 3–5. Or more specifically put, the Court
held, as it had in
Scott Paper, that Congress had made a
judgment: that the day after a patent lapses, the formerly
protected invention must be available to all for free. And further:
that post-expiration restraints on even a single licensee’s
access to the invention clash with that principle. See
Brulotte, 379 U. S., at 31–32 (a licensee’s
obligation to pay post-patent royalties conflicts with the
“free market visualized for the post-expiration period”
and so “runs counter to the policy and purpose of the patent
laws” (quoting
Scott Paper, 326 U. S., at 256)).
That patent (not antitrust) policy gave rise to the Court’s
conclusion that post-patent royalty contracts are
unenforceable—utterly “regardless of a demonstrable
effect on competition.” 1 Hovenkamp §3.2d, at
3–10.
Kimble’s real complaint may go to the
merits of such a patent policy—what he terms its
“formalis[m],” its “rigid[ity]”, and its
detachment from “economic reality.” Brief for
Petitioners 27–28. But that is just a different version of
the argument that
Brulotte is wrong. And it is, if anything,
a version less capable than the last of trumping statutory
stare
decisis. For the choice of what patent policy should be lies
first and foremost with Congress. So if Kimble thinks patent
law’s insistence on unrestricted access to formerly patented
inventions leaves too little room for pro-competitive
post-expiration royalties, then Congress, not this Court, is his
proper audience.
B
Kimble also seeks support from the wellspring
of all patent policy: the goal of promoting innovation.
Brulotte, he contends, “discourages technological
innovation and does significant damage to the American
economy.” Brief for Petitioners 29. Recall that would-be
licensors and licensees may benefit from post-patent royalty
arrangements because they allow for a longer payment period and a
more precise allocation of risk. See
supra, at 5. If the
parties’ ideal licensing agreement is barred, Kimble reasons,
they may reach no agreement at all. See Brief for Petitioners 32.
And that possibility may discourage invention in the first
instance. The bottom line, Kimble concludes, is that some
“breakthrough technologies will never see the light of
day.”
Id., at 33.
Maybe. Or, then again, maybe not. While we
recognize that post-patent royalties are sometimes not
anticompetitive, we just cannot say whether barring them imposes
any meaningful drag on innovation. As we have explained,
Brulotte leaves open various ways—involving both
licensing and other business arrangements—to accomplish
payment deferral and risk-spreading alike. See
supra, at 6.
Those alternatives may not offer the parties the precise set of
benefits and obligations they would prefer. But they might still
suffice to bring patent holders and product developers together and
ensure that inventions get to the public. Neither Kimble nor his
amici have offered any empirical evidence connecting
Brulotte to decreased innovation; they essentially ask us to
take their word for the problem. And the United States, which acts
as both a licensor and a licensee of patented inventions while also
implementing patent policy, vigorously disputes that
Brulotte has caused any “significant real-world
economic harm.” Brief for United States as
Amicus
Curiae 30. Truth be told, if forced to decide that issue, we
would not know where or how to start.
Which is one good reason why that is not our
job. Claims that a statutory precedent has “serious and
harmful consequences” for innovation are (to repeat this
opinion’s refrain) “more appropriately addressed to
Congress.”
Halliburton, 573 U. S., at ___ (slip
op., at 15). That branch, far more than this one, has the capacity
to assess Kimble’s charge that
Brulotte suppresses
technological progress. And if it concludes that
Brulotte
works such harm, Congress has the prerogative to determine the
exact right response—choosing the policy fix, among many
conceivable ones, that will optimally serve the public interest. As
we have noted, Congress legislates actively with respect to
patents, considering concerns of just the kind Kimble raises. See
supra, at 9. In adhering to our precedent as against such
complaints, we promote the rule-of-law values to which courts must
attend while leaving matters of public policy to Congress.
V
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.
For the reasons stated, the judgment of the
Court of Appeals is affirmed.
It is so ordered.