Protection From Infringement Allegations Under The ‘Kessler Doctrine’

Earlier this week, the Federal Circuit relied on the obscure "Kessler Doctrine" to prevent a patentee from asserting its patent in the case of Brain Life, LLC v. Eleckta Inc., 2014 U.S. App. LEXIS 5390 (Fed. Cir. March 24, 2014). The little-used Kessler Doctrine traces its roots back to the U.S. Supreme Court case of Kessler v. Eldred, where the Court prohibited a patentee from suing a defendant's customers for patent infringement in connection with lighters identical to those the defendant had shown to be non-infringing in prior litigation. Kessler v. Eldred, 205 U.S. 285 (1907).

This past week the Federal Circuit applied the Kessler Doctrine to "fill the gap" between claim preclusion and issue preclusion. Brain Life, LLC, 2014 U.S. App. LEXIS 5390 at *17-*22. Claim preclusion was unavailing to the defendant in Brain Life because the allegedly infringing acts took place after judgment was entered in the first suit. Id. at *17. Issue preclusion was likewise unavailing because the claims asserted in the second litigation were not the same as had been asserted in the first litigation. Id. at *22. However, the Federal Circuit explained that the defendant was nonetheless protected from the second suit under the Kessler Doctrine because the products at issue were "essentially the same" ("no material differences") as the products that were previously found not to infringe that same patent. Id. at *...