PRIVATE RIGHTS AND PUBLIC GOOD

Some U.S. Supreme Court cases turn on the meaning of a single word.  In those instances, Justice may appear to rule, concur, or dissent based on how many angels can dance on the head of a pin or the numbers of licks it takes to get to the center of a lollipop.

Other cases are loftier and strike balances between big ideas.  One such case, contemplating the balance between private right and the public good, came riding on the shoulders of a small toy – a “web blaster” shooting foam string to better imitate Spiderman.  Its inventor (who held a patent to it) and Marvel came to an agreement that included royalties, and the Court had to decide if they had the right to agree to payments beyond the date when the patent expired.

The private right at play is evident.  If Marvel, in order to start using the invention right there and then, agrees to pay royalties on its sales past the patent’s validity, and the inventor likes the deal, why shouldn’t they?

The public good, though, may run contrary.  The policy that allows patents at all means to foster innovation; the one that requires a patent to expire promotes public access to new and exciting discoveries, even web blasters.

There are a few types of contracts where the parties are limited by law to what they may agree to.  The concept is not foreign to the Courts.  Non-competes come to mind.  Insurance contracts are highly regulated.  And so it is, the Supremes reaffirmed, for those related to patents.  The parties are limited to terms within the life of the patent, and not beyond.

We have spoken about contracts at length under a variety of circumstances in this blog.  Here again, we must do so as a word of caution.  Not only are contractual terms sometimes tricky, but not all terms are necessarily kosher.  Your attorney can help – like your friendly neighborhood Spiderman.