A Tucson man is no longer receiving royalties on his “web-shooter” toy patent, according to the 9th U.S. Court of Appeals — for now, anyway.
Back in 1990, Tucsonan Stephen Kimble came up with an idea to replicate the webshooters used by Marvel Comic’s Spider-Man — but on a silly-string-shooting, kid-friendly level. He patented it, pitched it to Marvel, was told he’d get compensated if they used it, learned they were passing, and thought nothing more of it…until ’97:
Kimble said Tuesday that he only found out after a friend called and “congratulated” him on marketing the toy.
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Kimble sued Marvel in 1997 for patent infringement and breach of contract. He lost the patent infringement claim, but a jury ruled that Marvel violated a verbal contract between Schwartz and Kimble and that the inventor was due royalties on the toy.
A series of appeals followed, but the two sides settled in 2001, with Marvel buying the rights to the patent for $515,000 and agreeing to pay Kimble 3 percent of “net product sales.” The appeals court ruling said that Marvel ultimately paid Kimble more than $6 million in royalties.
But disputes over royalty calculations flared anew in 2006 when Marvel gave Hasbro the right to “produce certain toys related to Marvel characters.” By that time, new iterations of Web Blaster were being produced and it was also being packaged with other toys.
Kimble sued and Marvel countersued. A magistrate judge found that under a 1964 Supreme Court ruling, Brulotte v. Thys Co., Kimble was not entitled to royalties after the patent’s 2010 expiration date.
The district court ruled that the 2001 settlement between Marvel and Kimble was a “hybrid agreement” made with leverage from patent rights and “transferred inseparable patent and non-patent rights.”
In a “very abbreviated nutshell,” Kimble said, the court said “the patent has expired, so you’re done.”
But apparently, all is not yet lost. According to Cronkite News, “the court reversed the district court’s rejection of Kimble’s separate claim for breach of an alleged verbal agreement and remanded the issue for consideration,” and that Kimble might take the issue of his patent expiration to the Supreme Court.
This article appears in Jul 18-24, 2013.
Good god, why can;t I invent something? 6.5 milli for a silly string shooter?
Burnie,
I don’t think anyone has invented a strap on superman cock that shoots silly string yet. You can even include Kryptonite Condoms that will stop the spread of that silly super semen….
Interesting. Not sure it will sell as well around Christmas time tho.
Free market capitalism, as described by Adam Smirth, doesn’t exist in America. Businesses here are protected from the free market by the use of government guaranteed monopolies in the form of copyrights, patents, and trademarks. Currently, patents cost around $20,000 to obtain, which is why Mr. Kimble probably didn’t go through the trouble of getting one in the first place. Also, they only last 20 years. The average cost to pursue a patent infringement case in the US court system is around a million bucks. This leads to our current legal quagmire where individuals and businesses spend decades and millions of dollars suing each other. That cost is passed on to the consumer. Why someone thinks that they should be paid royalties for an idea or invention they created decades ago is beyond me. A better system would be to award a patent to an inventor. That inventor can sell his patent for a specific sum to anyone who wants to manufacture a patented device. And that’s it. The patent then transfers to the new owner and the old owner was compensated. Done deal. The whole concept of royalties and being compensated for the rest of eternity for something you created decades ago seems un-American to me. Adam Smith would be furious if he saw how patent law has gummed up the engines of commerce.