Blog Post

Jun 25, 2015

How a Trade Secret Could Have Saved a Running Royalty From a Nearly Invincible Law

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In Kimble v. Marvel Entertainment, LLC, just handed down June 22, 2015, the Supreme Court reaffirmed the 50 year old holding  of  Brulotte v. Thys Co., 379 U. S. 29 (1964), that patent royalties cannot extend beyond the expiration of the patent. So why is this case being discussed in a blog directed to trade secrets? Because the Court also reiterated that post-expiration royalties are allowable so long as they are tied to a non-patent right; and typically one of the most readily available such rights are trade secrets that almost invariably reside with the technology being licensed (or sold for that matter).

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