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Expert Analysis

Brulotte Rule Upheld Despite Suspect Economic Rationale

Law360, New York (June 23, 2015, 6:01 PM EDT) -- On June 22, 2015, the U.S. Supreme Court issued its decision in Kimble v. Marvel Entertainment Inc., maintaining the long-standing rule that a patent licensing agreement is per se unenforceable when it requires royalty payments for use after the expiration date of the underlying patent. The court's decision thus maintains a bright-line rule at the expense of depriving even commercially sophisticated parties of the flexibility to structure licensing arrangements so that royalty payments are spread to periods after the expiration of the subject patent....

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