The grant of partial summary judgment of non-infringement in a prior action did not necessarily preclude the plaintiff from bringing a later action against the same defendant for infringement of a reissue of the previously adjudicated patent. Vardon Golf Company, Inc., Karsten Mfg. Corp., Case No. 01-1557, 2002 U.S. App. LEXIS 12353 (Fed. Cir. June 21, 2002).
In Vardon I, Vardon accused Karsten of infringing two patents. Before suing, Vardon had filed a reissue application on the patent in suit. After the district court granted the Karsten’s motion for partial summary judgment of non-infringement on the patents, the U.S. Patent Trademark Office (PTO) granted reissue. To receive the reissue patent, Vardon surrendered the original patent, thereby mooting any potential appeal of the summary judgment of no infringement.
