Haynes and Boone Secures Final Judgment in Long-Running Marvel Dispute


NEW YORK – An Arizona district court has written the final chapter in a 15-year-old dispute concerning the “Web Blaster” Spider-Man role-play toy by issuing a declaratory judgment in favor of Haynes and Boone, LLP client Marvel Entertainment.  The court’s action affirmed that Marvel had satisfied all its obligations under an alleged 1990 verbal agreement with Stephen Kimble that has the subject of three lawsuits. 

Kimble first sued Marvel in 1997, claiming that Marvel's manufacture and sale of the Web Blaster infringed a Kimble patent and breached an alleged verbal agreement that Marvel would not make or sell such a toy without first negotiating a reasonable royalty with Kimble.  Marvel succeeded in having the patent claim dismissed before trial, but a jury determined that Marvel had breached the alleged verbal agreement and was liable for 3.5 percent of its net Web Blaster sales.

Haynes and Boone New York Partner David Fleischer, entered the fray for Marvel in its appeal from the judgment entered on the jury verdict and Kimble’s appeal from the dismissal of his patent claim.  In 2001, while both appeals were pending, Marvel and Kimble entered into a settlement agreement providing for vacation of the judgment entered in Kimble’s favor, a transfer of the patent to Marvel and the payment by Marvel of a 3.0 percent royalty on past and future sales.

In 2008 Kimble sued Marvel in connection with a dispute over the computation of royalties under the 2001 settlement agreement and Marvel asserted a counterclaim for a declaratory judgment to the effect that its royalty obligation under the settlement agreement would terminate on the May 25, 2010 expiration date of the Kimble patent under the principles articulated in 1964 by the U.S. Supreme Court in Brulotte v. Thys Co.  The royalty dispute in that case was settled, but Marvel succeeded in obtaining the requested declaratory judgment.  Kimble’s appeal from that decision is pending in the Ninth Circuit Court of Appeals.

In light of the outcome in the 2008 action, Kimble threatened to sue Marvel under the alleged verbal agreement to secure continuing royalties after May 2010.  In response to that threat Marvel commenced its own action against Kimble in April 2010 for a declaration that if Marvel ever had any obligations under the alleged verbal agreement (which Marvel denied), its entry into the 2001 settlement agreement satisfied those obligations.

The Arizona district court agreed with Marvel and entered a final judgment in Marvel’s favor on January 23. The case is Marvel Entertainment, LLC v. Stephen Kimble (CV 10-792-TUC-DCB).

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