The Kessler doctrine is an important part of patent litigation that has been around for more than a century. It provides a “limited trade right” that attaches to a product. A recent case questioning the application of this doctrine made its way to the Supreme Court, which ultimately denied to hear the claim.
In response, legal professionals called on the American Bar Association (ABA) to take a clear stance on the matter. The ABA agreed and adopted Resolution 509. This resolution essentially supports the Kessler doctrine. This is important because if, in the future, the Supreme Court takes on a case with a similar issue and adopts a contrary rule, the ABA could support legislative action on the issue.
A bit of history for clarification
The issue initial arose in 1907. At that time the Supreme Court agreed to hear a case, Kessler v. Eldred, which involved a patent battle over electric cigar lighters. The court held that there was no patent infringement. The patent holder went on to sue customers and others using the product. In general, res judicata and collateral estoppel protect against the potential for repeat litigation in these types of situations. However, this case brought attention to the fact that when it came to patent issues it was possible to find a loophole and move forward with such claims. Since patent matters are unique, a party could potentially bypass these protections.
The Supreme Court reviewed the case and decided that additional protection to reduce the risk of repeat litigation in patent issues was warranted to close this loophole. Hence, the Kessler Doctrine.
The Kessler doctrine, explained
This doctrine essentially closes the gap, precluding a patent owner from filing another lawsuit against a product that a court previous found not to infringe on the patent. Although a relatively old case, the Federal Circuit throughout the country has continued to use the Kessler doctrine. Most recently, this has served as a valuable tool in the fight against patent trolls.