page_title: Brulotte v. Thys Co.
section_title: Majority opinion
hierarchical_section_title: Brulotte v. Thys Co. / Ruling of Supreme Court / Majority opinion
caption_attribution_description: English: The official portrait of Justice William O. "Wild Bill" Douglas日本語: 合衆国最高裁判所裁判官ウィリアム・ダグラスの肖像画
context_page_description: Brulotte v. Thys Co., 379 U.S. 29, was a 1964 decision of the United States Supreme Court holding that a contract calling for payment of patent royalties after the expiration of the licensed patent was misuse of the patent right and unenforceable under the Supremacy Clause, state contract law notwithstanding. The decision was widely subjected to academic criticism but the Supreme Court has rejected that criticism and reaffirmed the Brulotte decision in Kimble v. Marvel Entertainment, LLC.
context_section_description: Justice Douglas began the majority opinion by citing precedents holding that patent "rights become public property once the 17-year period expires." He then quoted Chief Justice Stone, speaking for the Court in Scott Paper Co. v. Marcalus Co.:
  . . . any attempted reservation or continuation in the patentee or those claiming under him of the patent monopoly, after the patent expires, whatever the legal device employed, runs counter to the policy and purpose of the patent laws.
  The Court rejected the claim that the contract merely spread the payment for using the patent over a longer period. The payments were clearly proportioned to the extent of use after the patents expired: "The royalty payments due for the post-expiration period are by their terms for use during that period, and are not deferred payments for use during the pre-expiration period." Thys "was using the licenses to project its monopoly beyond the patent period." Because the license made no distinction between the pre- and post-expiration period, the contracts were "on their face a bald attempt to exact the same terms and conditions for the period after the patents have expired as they do for the monopoly period," contrary to patent policy. That made them unenforceable.
  The Court therefore ruled:
  n light of those considerations, we conclude that a patentee's use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se. If that device were available to patentees, the free market visualized for the post-expiration period would be subject to monopoly influences that have no proper place there.
  
  . . . A patent empowers the owner to exact royalties as high as he can negotiate with the leverage of that monopoly. But to use that leverage to project those royalty payments beyond the life of the patent is analogous to an effort to enlarge the monopoly of the patent by tieing the sale or use of the patented article to the purchase or use of unpatented ones. The exaction of royalties for use of a machine after the patent has expired is an assertion of monopoly power in the post-expiration period when, as we have seen, the patent has entered the public domain. . . . [A]fter expiration of the last of the patents incorporated in the machines "the grant of patent monopoly was spent" and . . . an attempt to project it into another term by continuation of the licensing agreement is unenforceable.
caption: Justice William O. Douglas
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