In LG Electronics U.S.A., Inc. v. Whirlpool Corporation, C.A. No. 10-311-GMS (D. Del. Sept. 29, 2011), LG filed a motion to dismiss Whirpool’s counterclaim of infringement of Whirlpool’s ‘130 patent by LG’s French door refrigerators. Id. at 2. A jury had previsouly found that LG’s French door refrigerators did not literally infringe Whirpool’s patent. LG argued that because its redesigned refrigerators share the same configuration as the refrigerator at issue in the previous action in all material aspects, Whirpool’s counterclaim was barred by res judicata. Id. at 6. Whirlpool argued that LG’s motion should be treated as a motion for summary judgment because it required “consideration of matters outside the pleadings[;]” and that LG did not “meet its burden of showing that the French door refrigerators subject to Whirlpool’s counterclaim [were] essentially the same as those addressed in the [previous] action.” Id. at 7. While granting LG’s motion to dismiss, Judge Sleet rejected Whirlpool’s argument that LG’s motion must be treated as a motion for summary judgment. “Although the court may not generally consider evidence beyond the complaint in deciding a Rule 12(b)(6) motion, when a motion to dismiss is based upon the defense of claim preclusion, the court may take judicial notice of the record in the [previous] action in reaching its determination on LG’s motions to dismiss.” Id.