Technology Properties Limited, LLC (“TPL”) filed its Opposition to Barnes & Noble’s Motion to Dismiss TPL’s district court infringement action based on an ITC determination of non-infringement (see prior coverage). TPL rebuts Barnes & Noble’s purported use of Kessler, noting that the “gap filler” doctrine is unnecessary because collateral estoppel would normally apply, but Congress and the Federal Circuit “unequivocally declared that such ITC decisions do not bind this Court,” referring to a 1974 Senate Report addressing Commission findings and preclusion and Federal Circuit precedent citing the same. In its Reply, Barnes & Noble argues that the Senate Report is not Congressional or statutory authority prohibiting issue preclusion nor does it address non-infringement. Barnes & Noble states that Kessler should apply in the limited context of (1) a judgment of non-infringement and (2) where the patentee chose not to appeal, noting that appeals from ITC decisions are binding and TPL should not be allowed to evade an adverse Commission judgment by choosing not to appeal. The Federal Circuit recently addressed the “well-settled rule” that Commission decisions involving patent issues have no preclusive effect in other forums in a non-precedential order in LSI Corporation v. Int’l Trade Comm’n, 2014-1410 (March 20, 2015). However, the Supreme Court’s decision on March 24, 2015 in B&B Hardware v. Hargis Industries, No. 13-352reiterated that issue preclusion is not limited to issues before two courts (when “Congress has authorized agencies to resolve disputes, ‘courts may take it as a given that Congress has legislated with the expectation that the principle [of issue preclusion] will apply except when a statutory purpose to the contrary is evident.’” Slip op. at 9). This Update will continue to monitor the district court’s decision in the TPL v. Barnes & Noble action.