Judge Stark recently issued two decisions applying collateral estoppel to various defendants based on a prior litigation in which the court had granted summary judgment of no pre-suit damages an the jury had ruled in the defendants’ favor. The Federal Circuit then summarily affirmed that judgment. Defendant Frontier Communications therefore moved for judgment on the pleadings based on collateral estoppel, arguing that the decision against pre-suit damages could not be relitigated. United Access Techs., LLC v. Frontier Commc’ns Corp., et al., C.A. No. 11-341-LPS, Memo. Op. at 1-3 (D. Del. Sept. 30, 2016). Judge Stark found, however, that the issues were not identical because the time periods in question were not identical and that difference “is material because [the] licensees could have, at some point between June 2002 and July 2009, begun to comply with the marking statute.” Id. at 4-5.
Two other defendants moved for judgment on the pleadings on the basis that a finding of summary judgment of non-infringement in the prior litigation estopped the Plaintiff from showing infringement in this case. Although the Federal Circuit had previously determined that collateral estoppel could not apply to a prior jury verdict in this case, the Defendants argued that it could apply to the summary judgment order. United Access Techs., LLC v. CenturyTel Broadband Services, LLC, et al., C.A. No. 11-339-LPS, Memo. Op. at 1-4 (D. Del. Sept. 30, 2016). Judge Stark agreed that the accused products at issue were identical because the Plaintiffs had not identified any differences from the products in the prior case. However, because “the Federal Circuit’s summary affirm Anne neither ‘endorse[d] [n]or reject[ed] . . . the district court’s specific holdings’ regarding claim construction, and because the claim constructions at issue here are not necessary to one of the rationales for affirmance [in the prior case], it is simply not possible to say that this Court’s claim constructions were necessary to the Federal Circuit’s decision. As a result, collateral estoppel does not apply to this Court’s decision.” Id. At 5-6.