Finally, the majority and dissenting opinions informatively articulate two opposing views of the proper role of the doctrine of stare decisis in US law.

The thrust of the criticism was that the patent misuse doctrine should be based on antitrust law principles, and that conduct without a significant anticompetitive effect should not be proscribed.

In its opinion in the Kimble case, the Supreme Court listed some of the criticism suggesting that the Brulotte decision was wrong and should be overruled:[1] Other criticism of Brulotte includes the following: Other commentators, however, have rejected adoption of an antitrust lens for analysis of patent misuse: In 1990, plaintiff Stephen Kimble obtained U.S. Patent No.

5,072,856 on a toy that allows children and other persons interested in role-playing as "Spider-Man" to shoot a spider web—really, pressurized foam string—"from the palm of [the] hand.

Kimble sought to sell or license his patent to Marvel's corporate predecessor and met with its president to negotiate a contract.

But the company instead began marketing the "Web Blaster"—a toy that, like Kimble's patented invention, enables users to mimic Spider-Man by shooting foam string.

The parties set no end date for royalties, apparently contemplating that they would continue for as long as customers wanted to buy the product.

The majority opinion by Justice Elena Kagan began by explaining how the US patent system reflects a congressional "balance between fostering innovation and ensuring public access to discoveries."

Consequently, once the statutory term of the patent monopoly ends, "the right to make or use the article, free from all restriction, passes to the public.

Allowing even a single company 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.

Nonetheless, "Kimble asks us to abandon Brulotte in favor of 'flexible, case-by-case analysis' of post-expiration royalty clauses 'under the rule of reason,' " as under the antitrust laws.

"[10] Putting aside for the moment the merits and demerits of taking an antitrust approach to the issue, the court turned to the role of stare decisis, acknowledging that sometimes it "means sticking to some wrong decisions."

This is especially true for statutes, as in this case: For "critics of our ruling can take their objections across the street, and Congress can correct any mistake it sees."

The ease of determining whether a license call for royalty payments after patent expiration "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 invalidate those post-expiration royalty clauses with anti-competitive consequences."

The decision interferes with the ability of parties to negotiate licensing agreements that reflect the true value of a patent, and it disrupts contractual expectations.

"[18] Justice Alito also rejected the antitrust-patent misuse distinction that the majority made: "Brulotte was an antitrust decision masquerading as a patent case.

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.

[20]In other words, using antitrust rather than patent law to address post-expiration royalties would not create nearly the tempest of uncertainty that the Court feared.

A tiny number of cases involving both market power and plausible anticompetitive exclusion or restraint on trade might be addressable under the antitrust laws.

[21][T]he impetus seems to derive from Justice Scalia's deeply rooted judicial conservatism rather than any concern with the scope of IP rights and their exploitation (or how the Brulotte rule has worked in practice).

Kimble reaffirms the doctrine of [those Supreme Court] cases holding that misuse is not antitrust and does not need a showing of actual anticompetitive effect.