In a witty but unsurprising Supreme Court opinion, Justice Kagan gave us what will likely become every patent attorney’s favorite Court quote:
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 patented article—rights he may sell or license for royalty payments if he so chooses. But a patent typically expires 20 years from the day the application for it was filed. And when the patent expires, the patentee’s prerogatives expire too, and the right to make or use the article, free from all restriction, passes to the public.
Kimble v. Marvel Entertainment, LLC., 576 U.S. ___ (2015) (PDF) (emphasis added, internal citations omitted).
The case itself focused on the “limited time” aspect of the superpowers a patent grants. United States Patent Number 5,072,856 covered a device that let users play at shooting spider webs from their hands (like a certain superhero), but even such a mighty patent could not command royalties after it expired. This outcome was hardly surprising, since the Supreme Court had said the same thing fifty some-odd years ago in Brulotte v. Thys Co., 379 U.S. 29 (1964). While three Justices (Alito, Roberts, and Thomas) did dissent, overturning Supreme Court precedent doesn’t happen very often, especially when the precedent involves statutory issues rather than Constitutional issues.
Affirming old precedent isn’t all that exciting, but comparing patents to some elixir that grants temporary superpowers is both fun and apt. Patent’s grant powers well beyond the norm in our free market economy, but even if you can imbibe of the potion that grants those powers, the effects wear off—and those powers sometimes come at a high price.
With a patent, you can sue your competitors and get a court order forcing those competitors to stop competing under penalty of being held in contempt of court. The court can also force them to pay damages for competing in the first place. With a patent in hand, you can strike a deal with your competitors where they pay you for the privilege of conducting their business. Now that is a superpower! Shooting sticky webs out of your hands is great if you want to climb walls or something, but if you want to make money patents are probably more useful.
The problem with patents, as Justice Kagan noted, is that the superpowers they grant wear off. Another problem with patents (that Justice Kagan didn’t have to reach) is that just like a superhero has to fight supervillains with their own superpowers, your competitors in business may own their own patents—resulting in a battle of superpowers. And, just like comic book superpowers often come with a great cost, getting that patent in the first place isn’t an easy or cheap proposition, as extracting the potent patent elixir from the Patent Office is a laborious process.
Are the superpowers a patent gives worth the cost? That depends upon what use you have for the power and what they will cost you. Even if the cost is worth it, though, you have to realize that the powers don’t last forever.