A Tucson attorney who designed a Spider-Man web blaster is not entitled to any more money from comic book giant Marvel, a court has ruled.
Jurors hearing the dispute in federal court in Tucson concluded Tuesday there is no valid enforceable oral contract between Stephen Kimble and the company that requires he be paid additional royalties. This is the second case he lost.
But it’s not like Kimble is walking away empty-handed: Court records show he already collected more than $6 million.
And even if this ruling is not overturned on appeal, Kimble has one more bite at the apple: There is still a separate “unjust enrichment” lawsuit against Marvel.
For the moment, though, the company is pleased.
“We were very gratified by the jury verdict, which we think was absolutely correct,” said attorney David Fleischer of the law firm of Haynes and Boone, who led the defense team.
Kimble did not return a call seeking comment.
The string of lawsuits begin with Kimble’s claim that, in helping his son, Kane, learn to read, the two would read Spider-Man comics together before bed. He said that led to a discussion of whether it was possible to come up with a toy.
The result, he said, was a device with a trigger attached to a valve in the palm of a glove.
That valve was attached to a flexible line leading to a can of foam that could be strapped to the user’s wrist or waist. Press the trigger and out came a string of foam.
Kimble had it patented.
According to court papers, Kimble said he pitched the idea to an executive of Toy Biz Inc., the firm that had the right to market Marvel toys. Kimble said the executive told him Marvel would compensate him if it decided to use any of his ideas, but the company later said it was not interested.
In 1995, however, Marvel began manufacturing a similar toy, contending it had come up with the idea independently.
While a federal judge threw out a claim of patent infringement, a jury concluded Marvel has breached an oral contract with Kimble. That case eventually settled out of court with Marvel purchasing the patent, providing $516,000 immediately and 3 percent of sales that would infringe on the patent.
The case would up back in court over a dispute over royalties on variations of the toy. Kimble lost that case when a federal appeals court said in 2013 a strict reading of the agreement he had with Marvel shows that his rights to royalties ended in 2010.
At issue in the case decided Tuesday is whether Marvel had a separate oral contract with Kimble to continue paying royalties. The jury concluded there was no such contract.
That still leaves the separate question of whether Marvel is unjustly benefiting financially from Kimble’s idea, an issue that will be settled in a separate lawsuit.