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Justice Kagan Cites Spiderman in "Comic" Patent Ruling

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By Casey C. Sullivan, Esq. on June 25, 2015 10:05 AM

If Justice Antonin Scalia is known as one of the Supreme Court's most flamboyant writers, Justice Elana Kagan is sure giving him a run for his money. Already praised for her conversational writing style, Kagan's writing is also gaining a reputation for its clever humor -- and humorous citations.

Case in point: Kimble v. Marvel Entertainment. The case involved patent law and Superman figurines and gave the Justice ample opportunity to play off the case's "comic" nature.

A Super Opinion on Superman Royalties

In Kimble, Marvel comics challenged a 1960's case which held that patent controllers could not collect royalties after their patent had expired, regardless of whether the parties wanted to keep paying or not. Marvel had settled a contentious patent dispute over it's web-shooting Spiderman toys and settled with the "Web Blaster" inventor by agreeing to pay him 3% royalties -- only to discover later that the agreement was invalid under the precedent.

The Court declined to overturn the case, citing the importance of stare decisis, with Kagan certainly playing up the "super hero" nature of the case, repeatedly using "super" as her superlative of choice: Stare decisis is "superpowered," for example, and there needs to be "superspecial" reasons to over power it. Repeat this half a dozen times, and you get the idea.

Stare Decisis Man

The kicker, of course, is Kagan's closing cite. She writes:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: "Spider-Man," p. 13 (1962) ("[I]n this world, with great power there must also come--great responsibility").

That's right, Blue Book nerds, Kagan wants you to compare the power of stare decisis to the power and responsibility afforded Spiderman. Will Stare Decisis Man be the next big comic book hit?

Of course, this isn't Kagan's first winking citation in a Supreme Court opinion. In a dissent this February, Kagan cited to Dr. Seuss. Where the majority interpreted "tangible object" in the Sarbanes-Oxley Act -- the object here was a fish -- to refer just to tangible recording devices, Kagan argued they should apply the terms ordinary meaning. Remember, she said, "a fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960)."

SCOTUS Bonus

A final linguistic development from SCOTUS today. You may remember that Kagan broke the "way" barrier in March, using "way" as an adverb in a Supreme Court decision when she wrote that a petitioner "way overstates" his case. She was joined on the Court's linguistic avant-garde today by -- surprise -- Scalia. In his dissent to today's ruling upholding the federal exchanges in Obamacare, Scalia wrote that the act, so shaped by the Court's reading, should instead be called SCOTUScare. That's the first time SCOTUS has ever written SCOTUS in a Supreme Court opinion. Way important, don't you think?

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