Kimble v. Marvel Entertainment, LLC ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KIMBLE ET AL. v. MARVEL ENTERTAINMENT, LLC,
SUCCESSOR TO MARVEL ENTERPRISES, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 13–720. Argued March 31, 2015—Decided June 22, 2015
Respondent Marvel Entertainment’s corporate predecessor agreed to
purchase petitioner Stephen Kimble’s patent for a Spider-Man toy in
exchange for a lump sum plus a 3% royalty on future sales. The
agreement set no end date for royalties. As the patent neared the
end of its statutory 20-year term, Marvel discovered Brulotte v. Thys
Co., 379 U.S. 29, in which this Court held that a patentee cannot
continue to receive royalties for sales made after his patent expires.
Marvel then sought a declaratory judgment in federal district court
confirming that it could stop paying Kimble royalties. The district
court granted relief, and the Ninth Circuit affirmed. Kimble now
asks this Court to overrule Brulotte.
Held: Stare decisis requires this Court to adhere to Brulotte. Pp. 3–18.
(a) A patent typically expires 20 years from its application date. 35
U.S. C. §154(a)(2). At that point, the unrestricted right to make or
use the article passes to the public. See Sears, Roebuck & Co. v.
Stiffel Co., 376 U.S. 225, 230. This Court has carefully guarded the
significance of that expiration date, declining to enforce laws and
contracts that restrict free public access to formerly patented, as well
as unpatentable, inventions. See, e.g., id., at 230–233; Scott Paper
Co. v. Marcalus Mfg. Co., 326 U.S. 249, 255–256.
Brulotte applied that principle to a patent licensing agreement that
provided for the payment of royalties accruing after the patent’s expi-
ration. 379 U.S., at 30. The Court held that the post-patent royalty
provision was “unlawful per se,” id., at 30, 32, because it continued
“the patent monopoly beyond the [patent] period,” id., at 33, and, in
so doing, conflicted with patent law’s policy of establishing a “post-
expiration . . . public domain,” ibid.
2 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Syllabus
The Brulotte rule may prevent some parties from entering into
deals they desire, but parties can often find ways to achieve similar
outcomes. For example, Brulotte leaves parties free to defer pay-
ments for pre-expiration use of a patent, tie royalties to non-patent
rights, or make non-royalty-based business arrangements. Contend-
ing that such alternatives are not enough, Kimble asks this Court to
abandon Brulotte’s bright-line rule in favor of a case-by-case ap-
proach based on antitrust law’s “rule of reason.” Pp. 3–7.
(b) The doctrine of stare decisis provides that today’s Court should
stand by yesterday’s decisions. Application of that doctrine, though
“not an inexorable command,” is the “preferred course.” Payne v.
Tennessee, 501 U.S. 808, 828, 827. Overruling a case always re-
quires “special justification”—over and above the belief “that the
precedent was wrongly decided.” Halliburton Co. v. Erica P. John
Fund, Inc., 573 U. S. ___, ___. Where, as here, the precedent inter-
prets a statute, stare decisis carries enhanced force, since critics are
free to take their objections to Congress. See e.g., Patterson v.
McLean Credit Union, 491 U.S. 164, 172–173. Congress, moreover,
has spurned multiple opportunities to reverse Brulotte, see Watson v.
United States, 552 U.S. 74, 82–83, and has even rebuffed bills that
would have replaced Brulotte’s per se rule with the standard Kimble
urges. In addition, Brulotte implicates property and contract law,
two contexts in which considerations favoring stare decisis are “at
their acme,” Payne, 501 U.S., at 828, because parties are especially
likely to rely on such precedents when ordering their affairs.
Given those good reasons for adhering to stare decisis in this case,
this Court would need a very strong justification for overruling
Brulotte. But traditional justifications for abandoning stare decisis
do not help Kimble here. First, Brulotte’s doctrinal underpinnings
have not eroded over time. The patent statute at issue in Brulotte is
essentially unchanged. And the precedent on which the Brulotte
Court primarily relied, like other decisions enforcing a patent’s cut-
off date, remains good law. Indeed, Brulotte’s close relation to a
whole web of precedents means that overruling it could threaten oth-
ers. Second, nothing about Brulotte has proved unworkable. See
Patterson, 491 U.S., at 173. To the contrary, the decision itself is
simple to apply—particularly as compared to Kimble’s proposed al-
ternative, which can produce high litigation costs and unpredictable
results. Pp. 7–12.
(c) Neither of the justifications Kimble offers gives cause to over-
rule Brulotte. Pp. 12–18.
(1) Kimble first argues the Brulotte hinged on an economic er-
ror—i.e., an assumption that post-expiration royalties are always an-
ticompetitive. This Court sees no error in Kimble’s economic analy-
Cite as: 576 U. S. ____ (2015) 3
Syllabus
sis. But even assuming Kimble is right that Brulotte relied on an
economic misjudgment, Congress is the right entity to fix it. The pa-
tent laws are not like the Sherman Act, which gives courts exception-
al authority to shape the law and reconsider precedent based on bet-
ter economic analysis. Moreover, Kimble’s argument is based not on
evolving economic theory but rather on a claim that the Brulotte
Court simply made the wrong call. That claim fails to clear stare de-
cisis’s high bar. In any event, Brulotte did not even turn on the no-
tion that post-patent royalties harm competition. Instead, the
Brulotte Court simply applied the categorical principle that all pa-
tent-related benefits must end when the patent term expires. Kim-
ble’s real complaint may go to the merits of that principle as a policy
matter. But Congress, not this Court, gets to make patent policy.
Pp. 12–16.
(2) Kimble also argues that Brulotte suppresses technological in-
novation and harms the national economy by preventing parties from
reaching agreements to commercialize patents. This Court cannot
tell whether that is true. Brulotte leaves parties free to enter alter-
native arrangements that may suffice to accomplish parties’ payment
deferral and risk-spreading goals. And neither Kimble nor his amici
offer any empirical evidence connecting Brulotte to decreased innova-
tion. In any event, claims about a statutory precedent’s consequences
for innovation are “more appropriately addressed to Congress.” Hal-
liburton, 573 U. S., at ___. Pp. 16–18.
727 F.3d 856, affirmed.
KAGAN, J., delivered the opinion of the Court, in which SCALIA, KEN-
NEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ALITO, J., filed a
dissenting opinion, in which ROBERTS, C. J., and THOMAS, J., joined.
Cite as: 576 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 over-
rule 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 pa-
——————
1 Petitioner Robert Grabb later acquired an interest in the patent.
For simplicity, we refer only to Kimble.
2 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Opinion of the Court
tent, 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 set-
tled 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 prod-
ucts. 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 ap-
proved 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).
——————
2 In Brulotte, the patent holder retained ownership of the patent
while licensing customers to use the patented article in exchange for
royalty payments. See 379 U.S., at 29–30. By contrast, Kimble sold
his whole patent to obtain royalties. But no one here disputes that
Brulotte covers a transaction structured in that alternative way.
Cite as: 576 U. S. ____ (2015) 3
Opinion of the Court
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 unconvinc-
ing.” 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 pa-
tented 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 appli-
cation 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 re-
striction, 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
——————
3 See, e.g., Scheiber v. Dolby Labs., Inc., 293 F.3d 1014, 1017–1018
(CA7 2002) (Posner, J.) (Brulotte has been “severely, and as it seems to
us, with all due respect, justly criticized . . . . However, we have no
authority to overrule a Supreme Court decision no matter how dubious
its reasoning strikes us, or even how out of touch with the Supreme
Court’s current thinking the decision seems”); Ayres & Klemperer,
Limiting Patentees’ Market Power Without Reducing Innovation
Incentives: The Perverse Benefits of Uncertainty and Non-Injunctive
Remedies, 97 Mich. L. Rev. 985, 1027 (1999) (“Our analysis . . . suggests
that Brulotte should be overruled”).
4 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Opinion of the Court
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, 152, 167–168 (1989);
Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234,
237–238 (1964). By virtue of federal law, we reasoned, “an
article on which the patent has expired,” like an un-
patentable 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 chal-
lenging 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 Metal-
lic Mfg. Co., 329 U.S. 394, 400–401 (1947) (ruling that
Scott Paper applies to licensees); Lear, Inc. v. Adkins, 395
U.S. 653, 668–675 (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 pay-
ment of royalties “accru[ing] after the last of the patents
incorporated into the machines had expired.” 379 U. S., at
Cite as: 576 U. S. ____ (2015) 5
Opinion of the Court
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 [pa-
tent] period,” even though only as to the licensee affected.
379 U.S., at 33. And in so doing, those agreements con-
flict 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 provi-
sions 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 prod-
uct’s commercial success. And sometimes, for some par-
ties, 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 commer-
cializing inventions—most notably, when years of devel-
opment work stand between licensing a patent and bring-
ing 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.
6 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Opinion of the Court
Yet parties can often find ways around Brulotte, ena-
bling 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 out-
lays, 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 pay-
ment 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 commer-
cializing 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
Cite as: 576 U. S. ____ (2015) 7
Opinion of the Court
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 rele-
vant 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 princi-
ples, fosters reliance on judicial decisions, and contributes
to the actual and perceived integrity of the judicial pro-
cess.” Payne v. Tennessee, 501 U.S. 808, 827–828 (1991).
It also reduces incentives for challenging settled prece-
dents, 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 im-
portant that the applicable rule of law be settled than that
it be settled right.” Burnet v. Coronado Oil & Gas Co., 285
8 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Opinion of the Court
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, 172–173 (1989). That is true, con-
trary 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. Kap-
pos, 561 U.S. 593, 601–602 (2010). Indeed, we apply
statutory stare decisis even when a decision has an-
nounced a “judicially created doctrine” designed to imple-
ment 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 agree-
ments for more than half a century. See Watson v. United
Cite as: 576 U. S. ____ (2015) 9
Opinion of the Court
States, 552 U.S. 74, 82–83 (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), 108 Stat. 4983
(1994) (increasing the length of the patent term); Act of
Nov. 19, 1988, §201, 102 Stat. 4676 (limiting patent-
misuse claims). Brulotte survived every such change.
Indeed, Congress has rebuffed bills that would have re-
placed 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, in-
stead relying on Brulotte as a default rule. Brief for Re-
10 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Opinion of the Court
spondent 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 expecta-
tions, 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 revers-
ing 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 prece-
dent). 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 expira-
tion. See supra, at 3–4. Scott Paper—the decision on
which Brulotte primarily relied—remains good law. So too
Cite as: 576 U. S. ____ (2015) 11
Opinion of the Court
do this Court’s other decisions refusing to enforce either
state laws or private contracts constraining individuals’
free use of formerly patented (or unpatentable) discover-
ies. See supra, at 3–4. Brulotte, then, is not the kind of
doctrinal dinosaur or legal last-man-standing for which
we 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 unwork-
able. See, e.g., Patterson, 491 U.S., at 173 (identifying
unworkability as another “traditional justification” for
——————
4 The only legal erosion to which Kimble gestures is a change in the
treatment of patent tying agreements—i.e., contracts conditioning a
licensee’s right to use a patent on the purchase of an unpatented
product. See Brief for Petitioners 43. When Brulotte was decided,
those agreements counted as per se antitrust violations and patent
misuse; now, they are unlawful only if the patent holder wields power
in the relevant market. See Act of Nov. 19, 1988, §201, 102 Stat. 4676
(adding the market power requirement in the patent misuse context);
Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28, 41–43
(2006) (relying on that legislative change to overrule antitrust decisions
about tying and to adopt the same standard). But it is far from clear
that the old rule of tying was among Brulotte’s legal underpinnings.
Brulotte briefly analogized post-expiration royalty agreements to tying
arrangements, but only after relating the statutory and caselaw basis
for its holding and “conclud[ing]” that post-patent royalties are “unlaw-
ful per se.” 379 U.S., at 32. And even if that analogy played some real
role in Brulotte, the development of tying law would not undercut the
decision—rather the opposite. Congress took the lead in changing the
treatment of tying agreements and, in doing so, conspicuously left
Brulotte in place. Indeed, Congress declined to enact bills that would
have modified not only tying doctrine but also Brulotte. See supra, at 9
(citing S. 1200, 100th Cong., 1st Sess. (1987), and S. 438, 100th Cong.,
2d Sess. (1988)). That choice suggests congressional acquiescence in
Brulotte, and so further supports adhering to stare decisis.
12 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Opinion of the Court
overruling precedent). The decision is simplicity itself to
apply. A court need only ask whether a licensing agree-
ment 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 to
employ 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 what-
ever 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 an-
swers to both are much the same: Kimble’s reasoning may
give Congress cause to upset Brulotte, but does not war-
rant this Court’s doing so.
A
According to Kimble, we should overrule Brulotte be-
cause it hinged on an error about economics: It assumed
that post-patent royalty “arrangements are invariably
Cite as: 576 U. S. ____ (2015) 13
Opinion of the Court
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 under-
cutting 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 sup-
ports 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 anticom-
petitive, he invokes decisions in which this Court aban-
doned antitrust precedents premised on similarly shaky
economic reasoning. See Brief for Petitioners 55–56 (cit-
ing, 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 re-
solve two questions in his favor. First, even assuming
14 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Opinion of the Court
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, 731–732 (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 misper-
ceived 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 under-
standing 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
Cite as: 576 U. S. ____ (2015) 15
Opinion of the Court
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 ad-
vances 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
16 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Opinion of the Court
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 “rig-
id[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 any-
thing, 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 arrange-
ments 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 rea-
sons, they may reach no agreement at all. See Brief for
Petitioners 32. And that possibility may discourage inven-
tion in the first instance. The bottom line, Kimble con-
cludes, is that some “breakthrough technologies will never
see the light of day.” Id., at 33.
Maybe. Or, then again, maybe not. While we recognize
Cite as: 576 U. S. ____ (2015) 17
Opinion of the Court
that post-patent royalties are sometimes not anticompeti-
tive, we just cannot say whether barring them imposes
any meaningful drag on innovation. As we have ex-
plained, Brulotte leaves open various ways—involving
both licensing and other business arrangements—to ac-
complish 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 inven-
tions 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 eco-
nomic 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 harm-
ful consequences” for innovation are (to repeat this opin-
ion’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
18 KIMBLE v. MARVEL ENTERTAINMENT, LLC
Opinion of the Court
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.
Cite as: 576 U. S. ____ (2015) 1
ALITO, J., dissenting
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 ALITO, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting.
The Court employs stare decisis, normally a tool of
restraint, to reaffirm a clear case of judicial overreach.
Our decision in Brulotte v. Thys Co., 379 U.S. 29 (1964),
held that parties cannot enter into a patent licensing
agreement that provides for royalty payments to continue
after the term of the patent expires. That decision was not
based on anything that can plausibly be regarded as an
interpretation of the terms of the Patent Act. It was based
instead on an economic theory—and one that has been
debunked. The decision interferes with the ability of
parties to negotiate licensing agreements that reflect the
true value of a patent, and it disrupts contractual expecta­
tions. Stare decisis does not require us to retain this
baseless and damaging precedent.
I
A
The Patent Act provides that a patent grants certain
exclusive rights to the patentee and “his heirs or assigns”
for a term of 20 years. 35 U.S. C. §§154(a)(1) and (2). The
Act says nothing whatsoever about post-expiration royal­
ties. In Brulotte, however, the Court held that such royal­
2 KIMBLE v. MARVEL ENTERTAINMENT, LLC
ALITO, J., dissenting
ties are per se unlawful. The Court made little pretense of
finding support for this holding in the language of the Act.
Instead, the Court reasoned that allowing post-expiration
royalties would subject “the free market visualized for the
post-expiration period . . . to monopoly influences that
have no proper place there.” 379 U.S., at 32–33. Invok­
ing antitrust concepts, the decision suggested that such
arrangements are “an effort to enlarge the monopoly of the
patent by t[y]ing the sale or use of the patented article to
the purchase or use of unpatented ones.” Id., at 33.
Whatever the merits of this economic argument, it does
not represent a serious attempt to interpret the Patent
Act. A licensing agreement that provides for the payment
of royalties after a patent’s term expires does not enlarge
the patentee’s monopoly or extend the term of the patent.
It simply gives the licensor a contractual right. Thus,
nothing in the text of the Act even arguably forbids licens­
ing agreements that provide for post-expiration royalties.
Brulotte was thus a bald act of policymaking. It was not
simply a case of incorrect statutory interpretation. It was
not really statutory interpretation at all.
B
Not only was Brulotte based on policymaking, it was
based on a policy that is difficult to defend. Indeed, in the
intervening 50 years, its reasoning has been soundly
refuted. See, e.g., 10 P. Areeda & H. Hovenkamp, Anti­
trust Law: An Analysis of Antitrust Principles and Their
Application ¶1782c.3, pp. 554–556 (3d ed. 2011); See &
Caprio, The Trouble with Brulotte: The Patent Royalty
Term and Patent Monopoly Extension, 1990 Utah L. Rev.
813, 846–851; Scheiber v. Dolby Labs., Inc., 293 F.3d
1014, 1017 (CA7 2002); Brief for Petitioners 23–25, and
n. 11 (collecting sources); ante, at 3, n. 3.
Brulotte misperceived the purpose and effect of post-
expiration royalties. The decision rested on the view that
Cite as: 576 U. S. ____ (2015) 3
ALITO, J., dissenting
post-expiration royalties extend the patent term by means
of an anti-competitive tying arrangement. As the Court
understood such an arrangement, the patent holder lever­
ages its monopoly power during the patent term to require
payments after the term ends, when the invention would
otherwise be available for free public use. But agreements
to pay licensing fees after a patent expires do not “enlarge
the monopoly of the patent.” 379 U.S., at 33. Instead,
“[o]nce the patent term expires, the power to exclude is
gone,” and all that is left “is a problem about optimal
contract design.” Easterbrook, Contract and Copyright, 42
Hous. L. Rev. 953, 955 (2005).
The economics are simple: Extending a royalty term
allows the parties to spread the licensing fees over a longer
period of time, which naturally has the effect of reduc-
ing the fees during the patent term. See ante, at 5. Re­
stricting royalty payments to the patent term, as Brulotte
requires, compresses payment into a shorter period of
higher fees. The Patent Act does not prefer one approach
over the other.
There are, however, good reasons why parties some­
times prefer post-expiration royalties over upfront fees,
and why such arrangements have pro-competitive effects.
Patent holders and licensees are often unsure whether a
patented idea will yield significant economic value, and it
often takes years to monetize an innovation. In those
circumstances, deferred royalty agreements are economi­
cally efficient. They encourage innovators, like universi­
ties, hospitals, and other institutions, to invest in research
that might not yield marketable products until decades
down the line. See Brief for Memorial Sloan Kettering
Cancer Center et al. as Amici Curiae 8–12. And they
allow producers to hedge their bets and develop more
products by spreading licensing fees over longer periods.
See ibid. By prohibiting these arrangements, Brulotte
erects an obstacle to efficient patent use. In patent law
4 KIMBLE v. MARVEL ENTERTAINMENT, LLC
ALITO, J., dissenting
and other areas, we have abandoned per se rules with
similarly disruptive effects. See, e.g., Illinois Tool Works
Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006); Leegin
Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S.
877 (2007).
The majority downplays this harm by insisting that
“parties can often find ways around Brulotte.” Ante, at 6.
But the need to avoid Brulotte is an economic inefficiency
in itself. Parties are not always aware of the prohibition—
as this case amply demonstrates. And the suggested
alternatives do not provide the same benefits as post-
expiration royalty agreements. For instance, although an
agreement to amortize payments for sales during the
patent term would “bring down early outlays,” the Court
admits that such an agreement might not reflect the
parties’ risk preferences. Ante, at 6. Moreover, such an
arrangement would not necessarily yield the same amount
of total royalties, particularly for an invention or a medical
breakthrough that takes decades to develop into a mar­
ketable product. The sort of agreements that Brulotte
prohibits would allow licensees to spread their costs, while
also allowing patent holders to capitalize on slow-
developing inventions.
C
On top of that, Brulotte most often functions to upset the
parties’ expectations.
This case illustrates the point. No one disputes that,
when “negotiating the settlement, neither side was aware
of Brulotte.” Ante, at 2. Without knowledge of our per se
rule, the parties agreed that Marvel would pay 3% in
royalties on all of its future sales involving the Web
Blaster and similar products. If the parties had been
aware of Brulotte, they might have agreed to higher pay­
ments during the patent term. Instead, both sides ex­
pected the royalty payments to continue until Marvel
Cite as: 576 U. S. ____ (2015) 5
ALITO, J., dissenting
stopped selling toys that fit the terms of the agreement.
But that is not what happened. When Marvel discovered
Brulotte, it used that decision to nullify a key part of the
agreement. The parties’ contractual expectations were
shattered, and petitioners’ rights were extinguished.
The Court’s suggestion that some parties have come to
rely on Brulotte is fanciful. The Court believes that there
is a “reasonable possibility that parties have structured
their business transactions in light of Brulotte.” Ante, at
10. Its only support for this conclusion is Marvel’s self-
serving and unsupported assertion that some contracts
might not specify an end date for royalties because the
parties expect Brulotte to supply the default rule. To its
credit, the Court stops short of endorsing this unlikely
prediction, saying only that “uncertainty on this score cuts
in Marvel’s direction.” Ante, at 10.
But there is no real uncertainty. “[W]e do not know” if
Marvel’s assertion is correct because Marvel has provided
no evidence to support it. Ibid. And there are reasons to
believe that, if parties actually relied on Brulotte to supply
a default rule, courts would enforce the contracts as the
parties expected. See, e.g., 27 R. Lord, Williston on Con­
tracts §70:124 (4th ed. 2003). What we know for sure,
however, is that Brulotte has upended the parties’ expec­
tations here and in many other cases. See, e.g., Scheiber,
293 F.3d, at 1016; Boggild v. Kenner Products, 853 F.2d
465, 466–467 (CA6 1988); Pitney Bowes, Inc. v. Mestre, 701
F.2d 1365, 1367, 1373 (CA11 1983). These confirmed
problems with retaining Brulotte clearly outweigh Mar­
vel’s hypothetical fears.
II
In the end, Brulotte’s only virtue is that we decided it.
But that does not render it invincible. Stare decisis is
important to the rule of law, but so are correct judicial
decisions. Adherence to prior decisions “ ‘promotes the
6 KIMBLE v. MARVEL ENTERTAINMENT, LLC
ALITO, J., dissenting
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.’ ” Pearson v. Callahan, 555 U.S. 223, 233
(2009) (quoting Payne v. Tennessee, 501 U.S. 808, 827
(1991)). But stare decisis is not an “inexorable command.”
Payne, supra, at 828; Washington v. W. C. Dawson & Co.,
264 U.S. 219, 238 (1924) (Brandeis, J., dissenting). “Re­
visiting precedent is particularly appropriate where, as
here, a departure would not upset expectations, the prece­
dent consists of a judge-made rule . . . , and experience has
pointed up the precedent’s shortcomings.” Pearson, supra,
at 233.
Our traditional approach to stare decisis does not re­
quire us to retain Brulotte’s per se rule. Brulotte’s holding
had no basis in the law. Its reasoning has been thoroughly
disproved. It poses economic barriers that stifle innova­
tion. And it unsettles contractual expectations.
It is not decisive that Congress could have altered
Brulotte’s rule. In general, we are especially reluctant to
overturn decisions interpreting statutes because those
decisions can be undone by Congress. See, e.g., John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 139
(2008); Patterson v. McLean Credit Union, 491 U.S. 164,
172–173 (1989). The Court calls this a “superpowered
form of stare decisis” that renders statutory interpretation
decisions nearly impervious to challenge. Ante, at 10. I
think this goes a bit too far.
As an initial matter, we do not give super-duper protec­
tion to decisions that do not actually interpret a statute.
When a precedent is based on a judge-made rule and is not
grounded in anything that Congress has enacted, we
cannot “properly place on the shoulders of Congress” the
entire burden of correcting “the Court’s own error.”
Girouard v. United States, 328 U.S. 61, 69–70 (1946). On
the contrary, we have recognized that it is appropriate for
Cite as: 576 U. S. ____ (2015) 7
ALITO, J., dissenting
us to correct rules of this sort. See, e.g., Leegin, 551 U.S.,
at 899–900; State Oil Co. v. Khan, 522 U.S. 3, 20–21
(1997).
The Court says that it might agree if Brulotte were an
antitrust precedent because stare decisis has “less-than­
usual force in cases involving the Sherman Act.” Ante, at
14. But this distinction is unwarranted. We have been
more willing to reexamine antitrust precedents because
they have attributes of common-law decisions. I see no
reason why the same approach should not apply where the
precedent at issue, while purporting to apply a statute, is
actually based on policy concerns. Indeed, we should be
even more willing to reconsider such a precedent because
the role implicitly assigned to the federal courts under the
Sherman Act has no parallel in Patent Act cases.
Even taking the Court on its own terms, Brulotte was an
antitrust decision masquerading as a patent case. The
Court was principally concerned with patentees improp­
erly leveraging their monopoly power. See 379 U.S., at 32–
33. And it expressly characterized post-expiration royal­
ties as anti-competitive tying arrangements. See id., at
33. It makes no sense to afford greater stare decisis pro­
tection to Brulotte’s thinly veiled antitrust reasoning than
to our Sherman Act decisions.
The Court also places too much weight on Congress’
failure to overturn Brulotte. We have long cautioned that
“[i]t is at best treacherous to find in congressional silence
alone the adoption of a controlling rule of law.” Girouard,
supra, at 69. Even where Congress has considered, but
not adopted, legislation that would abrogate a judicial
ruling, it cannot be inferred that Congress’ failure to act
shows that it approves the ruling. See Central Bank of
Denver, N. A. v. First Interstate Bank of Denver, N. A., 511
U.S. 164, 187 (1994). “ ‘[S]everal equally tenable infer­
ences may be drawn from such inaction.’ ” Ibid. (quoting
Pension Benefit Guaranty Corporation v. LTV Corp., 496
8 KIMBLE v. MARVEL ENTERTAINMENT, LLC
ALITO, J., dissenting
U. S. 633, 650 (1990)).
Passing legislation is no easy task. A federal statute
must withstand the “finely wrought” procedure of bicam­
eralism and presentment. INS v. Chadha, 462 U.S. 919,
951 (1983); Clinton v. City of New York, 524 U.S. 417, 440
(1998); see U. S. Const., Art. I, §7. Within that onerous
process, there are additional practical hurdles. A law
must be taken up for discussion and not passed over in
favor of more pressing matters, and Senate rules require
60 votes to end debate on most legislation. And even if the
House and Senate agree on a general policy, the details of
the measure usually must be hammered out in a confer­
ence committee and repassed by both Houses.
* * *
A proper understanding of our doctrine of stare decisis
does not prevent us from reexamining Brulotte. Even the
Court does not defend the decision on the merits. I would
reconsider and overrule our obvious mistake. For these
reasons, I respectfully dissent.