No. 13-720 ================================================================

In The

Supreme Court of the United States --------------------------------- ---------------------------------

STEPHEN KIMBLE, et al.,

Petitioners, v.

MARVEL ENTERPRISES, INC.,

Respondent.

--------------------------------- ---------------------------------

On Writ Of Certiorari To The United States Court Of Appeals

For The Ninth Circuit

--------------------------------- ---------------------------------

JOINT APPENDIX

--------------------------------- ---------------------------------

ROMAN MELNIK* KENNETH WEATHERWAX NATHAN N. LOWENSTEIN FLAVIO M. ROSE GOLDBERG, LOWENSTEIN & WEATHERWAX LLP 11400 W. Olympic Blvd., Ste. 400 Los Angeles, CA 90064 (310) 307-4500 melnik@glwllp.com ANTONIO R. DURANDO 6902 N. Table Mountain Road Tucson, AZ 85718 (520) 243-3383 Counsel for Petitioners

SETH P. WAXMAN*PAUL R.Q. WOLFSON MATTHEW GUARNIERI THOMAS G. SAUNDERS DANIEL AGUILAR WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NWWashington, DC 20006 (202) 663-6000 seth.waxman@wilmerhale.com

Counsel for Respondent *Counsel of Record

================================================================ Petition For Certiorari Filed December 13, 2013

Certiorari Granted December 12, 2014 ================================================================

COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

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TABLE OF CONTENTS

Page

Relevant Docket Entries from the Superior Court of the State of Arizona, No. C20083621 ......... 1

Relevant Docket Entries from the United States District Court for the District of Ari-zona, No. 4:08-cv-00372-DCB ................................... 2

Relevant Docket Entries from the United States Court of Appeals for the Ninth Cir-cuit, No. 11-15605 ................................................... 14

Relevant Pages from Ninth Circuit Court of Appeals Appellee’s Supplemental Excerpts of Record, No. 11-15605 .............................................. 16

The following opinions and orders have been omitted in the printing of this Joint Appendix because they appear on the following pages in the appendix to the Petition for Writ of Certiorari:

United States Court of Appeals for the Ninth Circuit, No. 11-15605, Opinion, Filed July 16, 2013 .................................................................. App. 1

United States District Court, District of Ari-zona, No. 4:08-cv-00372-DCB, Opinion and Order, Filed March 2, 2010 ............................ App. 27

1

Relevant Docket Entries from the Superior Court of the State of Arizona,

No. C20083621

Date Filed Docket Text

5/28/2008 Petition & Complaint

6/27/2008 Notice to Adverse Party of Removal to Federal Court

2

Relevant Docket Entries from the United States District Court for the

District of Arizona, No. 4:08-cv-00372-DCB

Date Filed No. Docket Text

06/27/2008 1 NOTICE OF REMOVAL from Pima County Superior Court, case number C20083621 Filing fee received: $ 350.00, receipt number 09700000000002041321, filed by Marvel Enterprises, Inc.. (Attach-ments: # 1 Index – Exhibits, # 2 Civil Cover Sheet, # 3 Supplement Supplemental Civil Cover Sheet, # 4 Corporate Disclosure Statement)(Jacobs, Andrew) (Entered: 06/27/2008)

08/04/2008 12 ANSWER to Complaint, COUN-TERCLAIM against Robert Grabb, Stephen Kimble by Marvel Enter-prises, Inc.. (Fleischer, David) (Entered: 08/04/2008)

09/19/2008 16 Answer to CounterclaimANSWER to 12 Counterclaim by Robert Grabb. (Grabb, Robert) (Entered: 09/19/2008)

11/18/2008 23 AMENDED COMPLAINT against Marvel Enterprises, Inc. filed by Robert Grabb, Stephen Kim-ble.(JEMB, ) (Entered: 11/18/2008)

12/05/2008 25 MOTION to Dismiss Counts/Claims: II, III, IV by Marvel Enterprises, Inc.. (Attachments:

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# 1 Christiansen Declaration, # 2 Exhibit 1 to Christiansen Declara-tion, # 3 Exhibit 2 to Christiansen Declaration) (Fleischer, David) (Entered: 12/05/2008)

01/12/2009 27 STIPULATION Stipulationof Dismissal of Counts II, III and IV of the First Amended Complaint by Marvel Enterprises, Inc.. (Fleischer, David) (Entered: 01/12/2009)

01/16/2009 29 ORDER granting 27 Stipulation; granting 25 Motion to Dismiss Counts.. Signed by Judge David C Bury on 1/15/09. (DNO,) (Entered: 01/16/2009)

01/26/2009 33 ANSWER to 23 Amended Com-plaint, COUNTERCLAIM against Robert Grabb, Stephen Kimble by Marvel Enterprises, Inc.. (Fleischer, David) (Entered: 01/26/2009)

02/11/2009 34 ANSWER to 33 Answer to Amend-ed Complaint, Counterclaim by Robert Grabb (an individual). (Grabb, Robert) (Entered: 02/11/2009)

05/18/2009 44 AMENDED ANSWER to Amended Counterclaims by Robert Grabb (an individual). (Grabb, Robert) (Entered: 05/18/2009)

06/15/2009 47 First MOTION for Summary Judgment re: 2nd Counterclaim

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by Robert Grabb (an individual). (Attachments: # 1 Statement of Facts, # 2 Exhibit) (Grabb, Robert) (Entered: 06/12/2009)

06/29/2009 48 Second MOTION for Partial Summary Judgment Counterclaim #4 by Robert Grabb (an individu-al). (Attachments: # 1 Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhib-it 7, #9 Exhibit 8) (Grabb, Robert) (Entered: 06/29/2009)

07/01/2009 49 Third MOTION for Partial Sum-mary Judgment First Counter-claim by Robert Grabb (an individual). (Attachments: # 1 Statement of Facts, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7) (Grabb, Robert) (En-tered: 07/01/2009)

07/06/2009 50 Fourth MOTION for Partial Summary Judgment Third counterclaim by Robert Grabb (an individual). (Attachments: # 1 Statement of Facts, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit

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Exhibit 7) (Grabb, Robert)(Entered: 07/06/2009)

07/08/2009 51 Fifth MOTION for Partial Sum-mary Judgment Definition of “net product sales” by Robert Grabb. (Attachments: # 1 Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhib-it 7) (Grabb, Robert) (Entered: 07/08/2009)

07/15/2009 54 MOTION for Summary Judgment Defendant’s Motion for Summary Judgment by Marvel Enterprises, Inc.. (Fleischer, David) (Entered: 07/15/2009)

07/15/2009 55 STATEMENT of Material Facts in Support re 54 MOTION for Sum-mary Judgment Defendant’s Motion for Summary Judgment by Defendant Marvel Enterprises, Inc.. (Fleischer, David) (Entered: 07/15/2009)

08/10/2009 59 RESPONSE in Opposition re 51 Fifth MOTION for Partial Sum-mary Judgment Definition of “net product sales”, 49 Third MOTION for Partial Summary Judgment First Counterclaim, 47 First MOTION for Summary Judgment re: 2nd Counterclaim, 48 Second MOTION for Partial Summary Judgment Counterclaim #4, 50

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Fourth MOTION for Partial Summary Judgment Third counterclaim filed by Marvel Enterprises, Inc.. (Fleischer, David) (Entered: 08/10/2009)

08/10/2009 60 STATEMENT of Defendant’sStatement of Facts in Opposition to Plaintiffs’ Motions for Summary Judgment re 59 Response in Opposition to Motion, by Defen-dant Marvel Enterprises, Inc.. (Fleischer, David) (Entered: 08/10/2009)

08/10/2009 61 DECLARATION of Declaration of Kenneth P. West in opposition to Plaintiffs’ Motions for Summary Judgment re 59 Response in Opposition to Motion, by Defen-dant Marvel Enterprises, Inc. filed by Marvel Enterprises, Inc.. (Fleischer, David) (Entered: 08/10/2009)

08/10/2009 62 DECLARATION of Jason T. Chris-tiansen in Opposition to Plaintiffs’ Motions for Summary Judgment re 59 Response in Opposition to Motion, by Defendant Marvel Enterprises, Inc. filed by Marvel Enterprises, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhib-it 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12

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Exhibit 12, # 13 Exhibit 13)(Fleischer, David) (Entered: 08/10/2009)

08/17/2009 63 RESPONSE to Motion re 54 MOTION for Summary Judgment Defendant’s Motion for Summary Judgment filed by Robert Grabb. (Attachments: # 1 Reply to State-ment of Facts) (Grabb, Robert) (Entered: 08/17/2009)

09/04/2009 64 REPLY in Support re 54 MOTION for Summary Judgment Defen-dant’s Motion for Summary Judg-ment filed by Marvel Enterprises, Inc.. (Fleischer, David) (Entered: 09/04/2009)

09/04/2009 65 DECLARATION of September 2, 2009 Declaration of Jason Christi-ansen in Support of Defendant’s Motion for Summary Judgment re 54 MOTION for Summary Judgment Defendant’s Motion for Summary Judgment by Defendant Marvel Enterprises, Inc., Counter Claimant Marvel Enterprises, Inc. filed by Marvel Enterprises, Inc.. (Attachments: # 1 Exhibit 7, # 2 Exhibit 8) (Fleischer, David) (Entered: 09/04/2009)

09/04/2009 66 STATEMENT of Additional Statement of Material Facts in Support of Defendant’s Motion for Summary Judgment by Defendant

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Marvel Enterprises, Inc., Counter Claimant Marvel Enterprises, Inc.. (Fleischer, David) (Entered: 09/04/2009)

09/14/2009 67 REPLY to Response to Motion re 49 Third MOTION for Partial Summary Judgment First Coun-terclaim, 47 First MOTION for Summary Judgment re: 2nd Counterclaim, 51 Fifth MOTION for Partial Summary Judgment Definition of “net product sales”, 48 Second MOTION for Partial Summary Judgment Counterclaim #4, 50 Fourth MOTION for Partial Summary Judgment Third coun-terclaim filed by Robert Grabb. (Attachments: # 1 Statement of Facts, # 2 Exhibit 1, # 3 Exhibit 2, #4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhib-it 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, #15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, #20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, #25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, #30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, #35 Exhibit 34, # 36 Exhibit 35,

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# 37 Exhibit 36) (Grabb, Robert) (Entered: 09/14/2009)

09/17/2009 68 ORDER re 48 Second MOTION for Partial Summary Judgment Counterclaim #4, 54 MOTION for Summary Judgment Defendant’s Motion for Summary Judgment, 49 Third MOTION for Partial Summary Judgment First Coun-terclaim, 47 First MOTION for Summary Judgment re: 2nd Counterclaim, 51 Fifth MOTION for Partial Summary Judgment Definition of “net product sales”, 50 Fourth MOTION for Partial Summary Judgment Third coun-terclaim : Motion Hearing set for 11/6/2009 at 10:00AM before Magistrate Judge D Thomas Ferraro. Signed by Magistrate Judge D Thomas Ferraro on 9/17/09. (CLJ,) (Entered: 09/17/2009)

12/02/2009 77 REPORT AND RECOMMENDA-TION recommending the District Court: grant 51 Fifth MOTION for Partial Summary Judgment Definition of “net product sales”, deny 49 Third MOTION for Par-tial Summary Judgment First Counterclaim, deny 47 First MOTION for Summary Judgment 2nd Counterclaim, deny 48 Second MOTION for Partial Summary

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Judgment Counterclaim #4, deny 50 Fourth MOTION for Partial Summary Judgment Third coun-terclaim, grant 54 MOTION for Summary Judgment. All written objections due within 14 days of being served with a copy of this Report and Recommendation and should include the following case number: CV 08-372-TUC-DCB. Signed by Magistrate Judge D Thomas Ferraro on 12/2/09. (SSU,) (Entered: 12/02/2009)

12/16/2009 78 TRANSCRIPT of Proceedings re: MOTION HEARING held on 11/6/09 before Judge D Thomas Ferraro. Transcribed by: Dianne Davenport. Transcript may be viewed at the court public termi-nal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/6/2010. Redacted Transcript Deadline set for 1/19/2010. Release of Transcript Restriction set for 3/16/2010. (BJW, ) (Entered: 12/16/2009)

12/16/2009 80 OBJECTION to 77 Report and Recommendations filed by Robert Grabb. (Grabb, Robert) (Entered: 12/16/2009)

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12/16/2009 81 OBJECTION to 77 Report and Recommendation by Defendant Marvel Enterprises, Inc.. (Christiansen, Jason) (Entered: 12/16/2009)

12/30/2009 82 Reply re 81 Objection by Plaintiff Robert Grabb. (Grabb, Robert) (Entered: 12/30/2009)

12/30/2009 83 RESPONSE re 80 Objection to Report and Recommendations by Defendant Marvel Enterprises, Inc.. (Christiansen, Jason) (Entered: 12/30/2009)

03/02/2010 85 ORDER adopting 77 Report and Recommendations; denying 47 Motion for Summary Judgment; denying 48 Motion for Partial Summary Judgment; denying 49 Motion for Partial Summary Judgment; denying 50 Motion for Partial Summary Judgment; granting 51 Motion for Partial Summary Judgment; granting 54 Motion for Summary Judgment. Withdrawing the reference from Magistrate Judge Ferraro; matter to be tried by Judge Bury. Joint pretrial order due 3/26/10. Signed by Judge David C Bury on 3/1/10. See attached pdf for complete information. (KMF) (Entered: 03/02/2010)

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02/11/2011 117 STIPULATION of Dismissal by Marvel Enterprises Incorporated. (Fleischer, David) (Entered: 02/11/2011)

02/15/2011 122 ORDER granting 117 Stipulation of Dismissal, all claims remaining in the action after 09/22/10 are dism with prejudice without atty fees and or costs to any party. In accordance with Dismissal Stip, parties have waived all appeals from any orders entered in this action, except the rights of Kimble and Grabb to appeal the Courts 03/02/10 Order (Doc. 85). The Courts March 2, 2010 Order (Doc. 85) with respect to Marvels motion for summary judgment (Doc. 54) shall be deemed final. This court retains jurisdiction over Marvel, Kimble, and Grabb for purpose of enforcing the Dismissal Stipula-tion.***SEE ATTACHED PDF FOR FURTHER INFOR-MATION***. Signed by Judge David C Bury on 02/14/11. (LMF) (Entered: 02/15/2011)

03/15/2011 124 AMENDED NOTICE OF APPEAL to 9th Circuit by Robert Grabb (an individual). (Attachments: # 1 Appeal Information Docketing Statement, # 2 Exhibit Service List, # 3 Exhibit Document 85,

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# 4 Exhibit Document 122) (Grabb, Robert) (Entered: 03/15/2011)

03/15/2011 125 9th Circuit Court of AppealsCase Number 11-15605 for 123 Notice of Appeal. (BAC) (Entered: 03/15/2011)

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Relevant Docket Entries from the United States Court of Appeals for the Ninth Circuit,

No. 11-15605

Date Filed No. Docket Text

06/20/2011 11 Submitted (ECF) Opening brief for review. Submitted by Appel-lants Robert Michael Grabb and Stephen Kimble. Date of service: 06/20/2011. [7791376] (RMG) [Entered: 06/20/2011 02:30 PM]

07/22/2011 15 Submitted (ECF) Answering brieffor review. Submitted by Appellee Marvel Enterprises Inc.. Date of service: 07/22/2011. [7830104] – [COURT UPDATE: Replaced PDF of brief (now includes Statement of Related Cases). Resent NDA. 07/26/2011 by DB] (DF) [Entered: 07/22/2011 01:12 PM]

08/05/2011 19 Submitted (ECF) Reply brief for review. Submitted by Appellants Robert Michael Grabb and Ste-phen Kimble. Date of service: 08/05/2011. [7845674] (RMG) [Entered: 08/05/2011 10:58 AM]

12/05/2012 36 ARGUED AND SUBMITTED TO Judges DIARMUID F. O’SCANNLAIN, SIDNEY R. THOMAS and CONSUELO M. CALLAHAN. [8426428] [11-15605] (AT) [Entered: 12/05/2012 12:36 PM]

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07/16/2013 43 FILED OPINION (DIARMUID F. O’SCANNLAIN, SIDNEY R. THOMAS and CONSUELO M. CALLAHAN) AFFIRMED. Judge: CMC Authoring. FILED AND ENTERED JUDGMENT. [8704928] (RP) [Entered: 07/16/2013 07:29 AM]

08/08/2013 44 MANDATE ISSUED.(DFO, SRT and CMC) [8735862] (MT) [En-tered: 08/08/2013 11:33 AM]

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Relevant Pages from Ninth Circuit Court of Appeals Appellee’s Supplemental

Excerpts of Record, No. 11-15605

EXHIBIT Kimble D

4-23-09 /s/ [Illegible]

[SER 12] AGREEMENT

AGREEMENT (the “Agreement”) dated as of Sep-tember 21, 2001 by and among Stephen E. Kimble (“Kimble”) and Robert Grabb (collectively, the “Patent Holders”) and Marvel Enterprises, Inc. (formerly known as Toy Biz, Inc.), a Delaware corporation (“Marvel”).

Preliminary Statement

A. In an action (the “Action”) entitled Stephen E. Kimble v. Toy Biz, Inc., Case No. CV-97-557-TUC-RCC, commenced in the United States District Court for the District of Arizona (the “District Court”), a judgment was entered on October 10, 2000 (the “Judgment”) in favor of Kimble and against Marvel as follows:

IT IS ORDERED AND ADJUDGED that judgment be entered in favor of the Plaintiff Stephen E. Kimble and against De-fendant Toy Biz., And find the full damages to be 3.5% of net product sales, past present and future excluding refill royalties.

On December 26, 2000 an order (the “Order”) of the District Court was entered denying Marvel’s post-trial motions under Rules 50 and 59 of the Federal Rules of Civil Procedure.

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B. Marvel filed a notice of appeal dated January 18, 2001 to the United States Court of Appeals for the Ninth Circuit from the Judgment and Order which was filed in the District Court on January 19, 2001. Kimble filed a notice of appeal dated February 2, 2001 to the United States Circuit Court for the Ninth Circuit from, inter alia, the Judgment and the order dated February 17, 2000 dismissing his patent in-fringement claim in the Action which was filed in the District Court on February 2, 2001. The appeals of Marvel and Kimble are hereinafter referred to as the “Appeals.”

[SER 13] C. An order dated February 9, 2001 was entered in the District Court on February 12, 2001 granting the joint motion of Kimble and Marvel for the approval of the supersedeas bond of Old Re-public Insurance Company in the amount of $807,333.53 filed in the District Court on February 9, 2001 (the “Bond”) and staying execution of the Judgment pend-ing Marvel’s appeal.

D. The Patent Holders are the owners of all right, title and interest in the Letters Patent of the United States of America No. 5,072,856 (the “Pa-tent”).

E. Kimble and Marvel wish to avoid the further expense and distraction of litigation.

NOW, THEREFORE, for and in consideration of the covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of

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which is hereby acknowledged, the parties hereby agree as follows:

1. Simultaneously with the execution and de-livery of this Agreement, Kimble and Marvel shall cause their attorneys of record in the Action to exe-cute and file a stipulation in the form of exhibit A withdrawing the Appeals with prejudice and a stipu-lation in the form of exhibit B vacating the Judgment and dismissing the Action with prejudice.

2. Upon execution and delivery of this Agree-ment, Kimble agrees forthwith to execute such docu-ments and take such action as Marvel may reasonably request to effectuate the release of the Bond.

3. Marvel agrees to purchase from the Patent Holders and the Patent Holders agree to sell to Marvel the Patent which will be evidenced by an in-strument of [SER 14] assignment in the form of ex-hibit C hereto. The purchase price for the Patent shall be payable to the Patent Holders as follows:

a. $516,214.62 upon execution and de-livery of this Agreement; and

b. 3% of “net product sales” (as such term is used in the Judgment) excluding re-fill royalties made after December 31, 2000. For purposes of this paragraph 3.b, “net product sales” shall be deemed to include product sales that would infringe the Patent but for the purchase and sale thereof pursu-ant to this Agreement as well as sales of the

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Web Blaster product that was the subject of the Action and to which the Judgment refers.

4. Within 45 days after the calendar quarter ending September 30, 2001 and within 45 days after the end of each calendar quarter thereafter in which product sales are made Marvel will (i) submit to Kimble (on behalf of the Patent Holders) a report (the “Quarterly Royalty Report”) covering net product sales made during such quarter which shall include the number of units of products sold, the price(s) at which such products were sold and a calculation of net product sales made during such quarter and (ii) remit payment to the Patent Holders of the amount shown as due in such Quarterly Royalty Re-port. Marvel hereby represents and warrants that net product sales of $14,169.48 were made during the period January 1, 2001 to date and Marvel agrees to remit to the Patent Holders $425.08 in respect of such sales upon execution and delivery of this Agreement. All payments shall be in United States Dollars and if based on transactions in another currency shall be calculated using the exchange rate in effect on the last day of the quarter for which the payment is made. Marvel will pay the Patent Holders interest on overdue payments at the lower of an annual rate of 2% over the [SER 15] prevailing prime interest rate and the rate of interest payable on judgments in the State of Arizona in effect on the date the payment was originally due.

5. A certified public accountant designated by Kimble (on behalf of the Patent Holders) will have

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the right, on no less than two weeks notice and no more frequently than once during any 12 month period, during regular business hours, to examine the financial records of Marvel pertaining to net product sales to the extent necessary to confirm the accuracy of the information reported on any Quarterly Royalty Report(s). If no objection to a Quarterly Royalty Re-port is made by Kimble (on behalf of the Patent Holders) within 120 days after the calendar year to which such report pertains, such Quarterly Royalty Report will be deemed final and conclusive as be-tween the parties. The Patent Holders shall maintain in strict confidence the information set forth in each Quarterly Royalty Report delivered hereunder and any information furnished in connection with any examination of Marvel’s financial records pertaining thereto.

6. The parties hereto agree that the terms of this Agreement shall be kept confidential and shall not be disclosed, directly or indirectly, to any third party at any time, other than to the parties’ lawyers, accountants, tax preparers and auditors, or as other-wise necessitated by the process of law (including disclosure under applicable securities laws, rules and regulations).

7. The parties agree to take such action and to execute and deliver such documents as may reason-ably be necessary to effectuate the purposes of this Agreement.

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[SER 16] 8. Nothing in this Agreement shall be construed or interpreted to constitute an admission of liability on Marvel’s part in respect of any claim made in the Action.

9. Except for the obligations undertaken by Marvel in this Agreement and except for those obliga-tions under the alleged verbal agreement that was the subject of the Action, the Patent Holders hereby release and discharge Marvel and its directors, of-ficers, shareholders, employees, agents and affiliates (collectively “Releasee”), and Releasee’s successors and assigns from all actions, causes of action, suits, debts, sums of money, accounts, covenants, contracts, con-troversies, agreements, promises, damages, claims and demands whatsoever, in law, admiralty or equity, which against Releasee, the Patent Holders or the Patent Holders’ successors and assigns ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of this Agreement.

10. The parties warrant that no representations have been made to any of them on behalf of any other party to influence or induce the execution of this Agreement and that they have fully read and exe-cuted this Agreement upon independent advice of counsel of their own choosing.

11. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their

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respective heirs, administrators, executors, succes-sors and assigns.

12. This Agreement contains the entire agree-ment among the parties with respect to the subject matter hereof and supersedes all prior and contempo-raneous arrangements or understandings with re-spect thereto.

[SER 17] 16. If any provision of this Agreement is held invalid, the invalidity thereof shall not affect any other provision of this Agreement.

17. In any action brought to enforce this Agree-ment, the prevailing party shall be entitled to an award of reasonable attorney’s fees and costs.

18. This Agreement may be executed in coun-terparts, each of which shall be deemed an original and all of which taken together shall constitute one agreement.

/s/ Stephen E. Kimble Stephen E. Kimble /s/ Robert Grabb Robert Grabb

MARVEL ENTERPRISES, INC.

By:

Its:

[SER 18] 13. This Agreement may not be amended, modified or supplemented in any respect except by a writing executed by the parties hereto.

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14. This Agreement shall be construed in ac-cordance with the laws of the State of New York applicable to agreements made and to be performed therein.

15. This Agreement will be construed to have been drafted by both parties and shall not be con-strued or interpreted against any one party.

16. If any provision of this Agreement is held invalid, the invalidity thereof shall not affect any other provision of this Agreement.

17. In any action brought to enforce this Agree-ment, the prevailing party shall be entitled to an award of reasonable attorney’s fees and costs.

18. This Agreement may be executed in counter-parts, each of which shall be deemed an original and all of which taken together shall constitute one agreement.

/s/ Stephen E. Kimble /s/ Robert Grabb

MARVEL ENTERPRISES, INC.

By: /s/ Allen S. Lipson

Its: /s/ Exec. VP

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[SER 21] ASSIGNMENT

For good and valuable consideration, the receipt of which is hereby acknowledged, we, Stephen Kimble and Robert Grabb, do hereby assign and transfer unto Marvel Enterprises, Inc., of the State of New York, in the United States of America, and unto its successors, assigns and legal representatives, the entire right, title and, interest to a certain invention entitled Toy Web-Shooting Glove, described, illus-trated and claimed in Letters Patent of the United States of America No. 5,072,856, issued to Stephen Kimble on December 17, 1991 and partially assigned to Robert Grabb on February 25, 1997, together with the entire right, title and interest in and to said Letters Patent, and any division, extension, contin-uation, reissue, renewals and re-examinations there-of.

We also hereby assign and transfer unto Marvel Enterprises, Inc., the entire right, title and interest in and to said inventions and in and to applications for Letters Patent therefor in all countries foreign to the United States of America, including all rights under any and all international conventions and treaties in respect of said inventions and said appli-cations for Letters Patent in foreign countries; I further authorize Marvel Enterprise, Inc., to apply for Letters Patent in foreign countries directly in its own name, and to claim the priority of the filing date of said application for Letters Patent of the United States of America under the provisions of any and all international conventions and treaties.

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[SER 22] We hereby authorize and request the Commissioner of Patents of the United States of America to issue Letters Patent upon the aforesaid application, division, extension, continuation or re-issue, to Marvel Enterprises, Inc. for the sole use and behalf of Marvel Enterprises, Inc., and its successors, assigns and legal representatives, to the full end of the term for which said Letters Patent may be granted, the same as they would have been held and enjoyed by Stephen Kimble and Robert Grabb had this assignment not been made, and we hereby au-thorize and request the equivalent authorities in foreign countries to issue the patents of their respec-tive countries to Marvel Enterprises, Inc.

We agree that, when requested, we will, without charge to Marvel Enterprises, Inc., but at its expense, sign all papers, take all rightful oaths, and do all acts which may be necessary, desirable or convenient for securing and/or maintaining patents for said inven-tion in any and all countries and for vesting title thereto in Marvel Enterprises, Inc., and its suc-cessors, assigns and legal representatives or nomi-nees.

We covenant with said Marvel Enterprises, Inc., its successors, assigns and legal representatives, that the interest and property hereby conveyed is free

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from all prior assignment, grant, mortgage, license or other encumbrance.

/s/ Stephen Kimble 9/19/01 Stephen Kimble Date /s/ Robert Grabb 9/19/01 Robert Grabb Date

[SER 24] Fleischer, David

From: Rgrabb@aol.com Sent: Tuesday, August 28, 2001 1:35 PM To: davidfleischer@paulhastings.com Subject: Kimble v. Toy Biz

David, Our concept of a final deal between Kimble and Toy Biz is that Toy Biz will buy the Kimble patent for appoximately $531,000, and will pay a royalty of 3% of sales on toys it sells in the future that are based on the patent or the disclosures Kimble made to Toy Biz over 10 years ago (no need to rehash what the disclo-sures were as they are contained in the transcript of the trial).

Our reasoning (and we had asked Claudia to address this issue at the mediation) is as follows: (Assuming the Judgment is upheld on appeal.) If Toy Biz were to make a new toy, different from the Web Blaster, but covered by either the patent or the disclosures made to Toy Biz by Kimble, then Kimble would no doubt have a new claim against Toy Biz. Therefore, the 3%

27

royalty for future sales would necessarily apply to toys which satisfy the underlined definition above.

In fact, it has always been our belief that the better version of the toy is the one that has the cannister attached somewhere around the waist area with a pressurized tube running along the arm. Should Toy Biz elect to make this toy or another toy based upon the patent or disclosures, we would be entitled to a 3% royalty.

I hope I’ve been able to articulate our position clearly. If not, and you have any other questions, please call.

Sincerely,

Bob Grabb

[SER 25]

From: rgrabb@aol.com Sent: Wednesday, January 09, 2008 11:45 AM To: West, Ken; kimblelaw@aol.com Subject: Re: Royalties Attachments: spiderman.settlement.pdf

Ken,

Thanks again for your quick response. There are a few additional issues I would like to address with you.

Would you please tell me whether the monies re-flected in the latest check (#117365 for $27,844.27) included all past sales of the Ultimate Web Blaster or

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just those recorded in the third quarter? (We had never been paid any royalties for the Ultimate Web Blaster prior to that last check.)

Would you also please tell me whether there are any royalties due for The Spiderman 3 Venom Mask & Wrist Blaster, sku #69164 and Spiderman 3 Reversi-ble Red to Black Spider-Man Mask and Web Blaster, sku #69159? Neither of these products have been accounted for.

Furthermore, attached is the settlement agreement between us and Marvel. If you look at paragraph 3(b), we are to be paid,

“3% of net product sales” (as such term is used in the Judgment) excluding refill royalties made after December 31, 2000. For purposes of this paragraph 3.b, “net product sales” shall be deemed to include product sales that would infringe the Patent but for the purchase and sale thereof pursuant to this Agreement as well as sales of the Web Blaster prod-uct that was the subject of the Action and to which the Judgment refers.”

Clearly the Ultimate Web Blaster, along with all other Web Blaster products currently on the market would infringe the Patent. The Agreement provides that we are to be paid based on the product sales, not on 20% of the product sales. I reviewed all past accountings this morning. There is no indication in any of the accountings that Marvel used this type of approach with any other Web Blaster toys in the past. If Marvel has previously done so, could you please let

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me know. If this has not been done in the past, why has Marvel decided to do it now?

I appreciate all your help. This must be a big pain in your neck to deal with.

Thanks in advance for your prompt response.

Sincerely,

Bob Grabb

[SER 28]

From: rgrabb@aol.com Sent: Thursday, February 07, 2008 12:06 PM To: West, Ken Subject: Re: Royalties on Web Blaster

Ken,

Sorry for the late response. I was out of town until yesterday, and Steve and I were unable to put to-gether our response until now.

As one can well imagine, we are somewhat troubled by all the hoops we had to jump through just to get the moneys that were obviously owed. We would like Marvel to once again assure us that no other royalties are owed to us.

Assuming, as you mentioned in an earlier email, that the mistake was due to the new contract with Hasbro, we still find it troubling that Marvel unilaterally decided (without even any advance notice to us and apparently made without reviewing the Settlement

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Agreement) to slash what we were owed on the Ul-timate Web Blaster by 80%.

Since our relationship with Marvel will continue for as long as there is a Web Blaster toy, and assuming there will be such a toy on the market for many many years to come, we would no doubt like to remain on good terms. However, we see absolutely no incentive to modify the terms of the Settlement Agreement as you have outlined and therefore we respectfully decline your offer to do so.

If you have another proposal that is beneficial to all parties, we will certainly be happy to consider it.

Thanks for all your courtesies.

Bob