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Claim Preclusion
Because patent infringement is a strict liability offense, liability typically turns on the nature of the accused product. Courts addressing claim preclusion in patent cases thus tend to focus on the extent to which a newly accused product is the same as the previously adjudicated product. See Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1326 (Fed. Cir. 2008) (holding that preclusion does not apply unless the newly accused product is “essentially the same” as a previously adjudicated product). Another key issue is the extent to which nonparties may also seek the benefit of a judgment of noninfringement. Logically, once a product has been adjudicated to be noninfringing in a suit against the manufacturer, the patentee should not be able to seek another bite at the apple through subsequent suits down the distribution chain of the same product. One problem with reaching this result through a traditional res judicata, or claim preclusion, analysis is that customers are not technically in privity with their manufacturer/supplier.
The manufacturer/customer privity hurdle in patent infringement suits can be overcome by application of the Kessler doctrine. This doctrine is based on the Supreme Court's seminal 1907 decision in Kessler v. Eldred, which held that a favorable adjudication of patent infringement claims against a manufacturer precludes suit against the manufacturer's customers based on the same products. The rationale given for the Kessler doctrine is that extending preclusive effect to the customers is necessary because, otherwise, the effect of the prior judgment favorable to the manufacturer “would be virtually destroyed.” MGA, Inc. v. General Motors Corp., 827 F.2d 729, 734 (Fed. Cir. 1987). The Kessler doctrine appears to be an exception to the requirement of strict privity for application of res judicata, and has been endorsed by the Federal Circuit as a product-based privity analogous to defensive application of collateral estoppel. See Id.
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