On May 31, 2015, United States Magistrate Judge Paul Grewal of the U.S. District Court for the Northern District of California issued a Report And Recommendation Denying Motion For Judgment On The Pleadings declining to apply claim and issue preclusion to an ITC determination of non-infringement in Technology Properties v. Barnes & Noble, Case No. 3:12-cv-03863-VC (see prior coverage). Beginning his decision by noting that “the International Trade Commission is as important a forum for resolving patent matters as any federal district court,” Judge Grewal stated that there are, however, several key differences. One difference is that “[u]nlike 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.” Judge Grewal denied Barnes & Noble’s request to apply “the long-dormant preclusion principle known as the Kessler doctrine,” where in 1907 the Supreme Court held that an earlier judgment of non-infringement by a court of competent jurisdiction precludes a later claim in district court even where the first finding would not be the basis for res judicata or collateral estoppel. Noting that the Federal Circuit in Brain Life v. Elekta,746 F.3d 1045, 1056 (Fed. Cir. 2014), affirmed that Kessler v. Eldred, 205 U.S. 285, 289 (1907), “remains the law of the land,” Judge Grewal clarified that no court has considered whether the Kessler doctrine bars a later district court claim based on an earlier determination by the ITC. “Presented with this issue of first impression,” Judge Grewal found that “no matter its renewed lease on life, theKessler doctrine does not apply to the ITC’s earlier finding that B&N does not infringe the patent in question.” Judge Grewal cited Senate Report No. 1298 in which Congress stressed that “it seems clear that any disposition of a Commission action by a Federal Court should not have a res judicata or collateral estoppel effect in cases before such courts,” and Federal Circuit precedent holding that “the ITC’s prior decision cannot have claim preclusive effect in the district court.” Judge Grewal distinguished the recent Supreme Court decision in B&B Hardware v. Hargis Indus., 135 S. Ct. 1293, 1298-99 (2015) by noting the fact that “Congress was clear that the ITC could not bind district courts with unappealed findings.” Judge Grewal stated that, although the recent Supreme Court decision held that a final decision by the Trademark Trial and Appeal Board could collaterally estop a district court, “the Court went to great lengths to emphasize that deference to any agency’s finding depends on Congress not having said anything to suggest otherwise.” Judge Grewal therefore recommended that B&N’s motion for judgment on the pleadings be denied. A Magistrate’s recommendation on a dispositive matter is, upon motion, subject to de novo review in the Northern District of California. This Update will monitor whether Judge Grewal’s recommendation is subject to de novo review.