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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.