Fed. Cir. affirms application of claim preclusion and Kessler doctrine to assertions against products that existed when an earlier litigation was concluded, vacates with respect to new/different products, and remands.   Claim preclusion applied to apparatus claims that were previously litigated (which everyone agreed it should) and method claims that were previously dismissed without prejudice (which Brain Life argued it should not), but only with respect to acts that occurred before the prior judgment.  Issue preclusion blocked subsequent assertion of the apparatus claims that were “fully, fairly, and actually litigated to finality” as to then-existing products, but did not block assertion against new products or assertion of the method claims, which were dismissed.

Brain Life, LLC v.  Elekta Inc., ___ F.___ (Fed. Cir. Mar. 24, 2014) (O’MALLEY, Bryson, Wallach) (S.D. Cal.: Bencivengo) (3 of 5 stars)

The Kessler Doctrine, of Kessler v. Eldred, 206 U.S. 285 (1907), “fills the gap” between claim and issue preclusion, so that an adjudged noninfringing product (and products “essentially the same”) have “a limited trade right” to be free of infringement assertions even under claims that were not brought or were dismissed, and whether against the manufacturer or privies, such as downstream buyers/users (even though the acts of infringement were not protected by claim preclusion).