04/23/18

Does Patent law allow plaintiffs too many bites at the apple?

Does Patent law allow plaintiffs too many bites at the apple?

Jason D. Reinecke

The Federal Circuit’s current rule on claim preclusion doesn’t bar a plaintiff from bringing a second patent infringement lawsuit against the same defendant and accused conduct if the plaintiff alleges infringement of a different patent in the second suit. This Article argues that the Federal Circuit’s rule is inconsistent with the widely adopted transactional approach to claim preclusion as described in the Restatement (Second) of Judgments and adopted by most courts. This Article discusses three rules -the current rule, a rule that properly implements the transactional approach, and a middle-ground rule -along with their policy implications. In short, if the Federal Circuit adopted a rule consistent with the transactional approach, the goals of claim preclusion may be better served. A transactional rule would, among other things, provide parties with increased finality and reliance, often provide increased judicial and private litigation efficiency, and minimize the chance of multiple recovery and excessive recovery of damages. Because a transactional rule offers such advantages, the Federal Circuit’s current rule on claim preclusion warrants reconsideration by the Federal Circuit or the Supreme Court.

99 J. Pat. & Trademark Off. Soc’y 360(2017)

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