Recently, in SRI International, Inc. v. Symantec Corporation, C.A. No. 11-131-SLR (D. Del. Mar. 30, 2012), Judge Robinson denied summary judgment of claim preclusion. SRI had previously litigated the same patents against Symantec in a separate case. In that previous case, one witness discussed MSS, the accused product of the present case. The jury was not, however, asked to determine whether MSS infringed the patents-in-suit. Symantec then argued in the present case that “because there was mention of MSS during the course of the [previous] case and at trial, SRI should be precluded from pursuing the instant litigation.” Id. at 9.
Judge Robinson found, however, that Symantec’s position suffered from “two infirmities, both of which are undisputed. First, despite multiple discovery requests in the [previous] case, Symantec did not provide SRI with any technical data on MSS. Second, there was no specific judgment entered in the [previous] case about MSS.” Id. at 9-10. Because the Court found that Symantec had not proven that MSS was essentially the same as the previously-litigated product, it denied Symantec’s motion for summary judgment.