Magistrate Judge Grewal Wrestles With "Kessler"

Report and Recommendation Denying Motion For Judgment On the Pleadings, Technology Properties Limited LLC v. Barnes & Noble, 3:12-cv-03863-VC (Magistrate Judge Grewal)

"Talk up anyone in the patent litigation business, and she will almost certainly agree: the International Trade Commission (ITC) is as important a forum for resolving patent matters as any federal district court. And for good reason. Just like district courts the ITC may determine the infringement of United States patent rights. There are, however, several key differences. For one thing, an ITC infringement determination can only give rise to an order of exclusion from the United States—not damages. This case highlights another key difference. Unlike with an earlier district court judgment, Congress has mandated that an earlier ITC determination 'cannot have preclusive effect' in a later district court case under the doctrines of claim and issue preclusion."