On February 4, 2015, Barnes & Noble filed a Motion to Dismiss a patent infringement action filed by Technology Property Limited ("TPL") in the U.S. District Court for the Northern District of California because the ITC already ruled that Barnes & Noble did not infringe the same patent in Certain Wireless Consumer Electronics and Components Thereof, Inv. No. 337-TA-853. TPL initiated the district court and ITC actions simultaneously but stayed the district court action pending the outcome of the ITC investigation. The ALJ found, and the Commission affirmed, non-infringement on multiple grounds. TPL did not appeal the ITC decision to the Federal Circuit, rendering the ITC judgment final. The Federal Circuit previously has declined to give ITC decisions res judicata or preclusive effect, holding that other tribunals are entitled to adjudicate issues such as infringement, validity, and unenforceability under their original and exclusive jurisdiction found in 28 U.S.C. § 1338. See, e.g., Texas Instruments v. Cypress Semiconductor, 90 F.3d 1558 (Fed. Cir. 1996). Barnes & Noble argues that TPL’s district court action is barred by the doctrine of Kessler v. Eldred, 206 U.S. 287 (1907), which Barnes & Noble argues "instructs that a finding of non-infringement precludes relitigation even where that finding would not be the basis for res judicata or collateral estoppel." Barnes & Noble notes that the doctrine allows "‘an adjudged non-infringer to avoid repeated harassment for continuing its business as usual postfinal judgment in a patent action where circumstances justify that result,’" citing, Brain Life v. Elekta, 746 F.3d 1045, 1056 (Fed. Cir. 2014). ITC Section 337 Update will monitor the outcome of Barnes & Nobles’ motion.