Stephen Kimble v. Marvel Enterprises Inc.

OPINION

CALLAHAN, Circuit Judge:

This appeal calls on us to again construe the Supreme Court’s frequently-criticized decision in Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964). In Brulotte, the Court held that a patent licensing agreement requiring a licensee to make royalty payments beyond the expiration date of the underlying patent was unenforceable because it represented an improper attempt to extend the patent monopoly. Id. at 30-33, 85 S.Ct. 176. We have previously noted that Brulotte has been read to require that any contract requiring royalty payments for an…