I wouldn't be so sure Toberoff doesn't agree with me (wink).
The key to the ruling is if Kirby created characters and plots on spec.
I'm not saying this, it's the judge who says it over and over again. She reasons that because Lee created the characters and plots before ever speaking to Kirby nothing he did was done on spec. Everything else stems from that understanding based on Lee's testimony.
Lee created the Fantastic Four alone, wrote an outline, and then gave it to Kirby to draw. Anything Kirby added (and Lee mentions nothing which is given a name) was thus done after Lee had created and set in motion the basic characters, and plot.

Another aside which the judge includes and has no relationship to the case as far as I can see is her repeating Lee's story that he rejected Kirby's Spiderman, because the character was too "muscular and heroic."
Not that it means anything but I've always seen that as a weird comment by Lee.  In 1960 Kirby characters were not the stocky types he began drawing in the later 60's. Just the opposite in the late 1950's and early 1960's Kirby's characters were thin looking, lanky.  Further Kirby had already drawn a very wimpy looking Bruce Banner and a scrawny jug eared Reed Richards prior to his work on the Spiderman character. Beyond that the Kirby Spiderman story (which Lee would I assume would say was given to Kirby in the form of a Lee outline) became Spiderman through a magical transformation so you would expect the hero to be a bit larger the the teenage orphan with the ring just as Thor is a bit larger than the scrawny looking Don Blake.
http://images.wikia.com/marveldatabase/images/f/fa/Incredible_Hulk_Vol_1_1.jpg