Chief Judge Stark Denies Motion for Judgment on the Pleadings of Collateral Estoppel

November 3, 2016

Publication| Intellectual Property

In United Access Technologies, LLC v. Frontier Communications Corp., C.A. No. 11-341-LPS (D. Del. Sept. 30, 2016), Chief Judge Stark denied Frontier Communications Corp.’s (“Frontier”) motion for judgment on the pleadings that collateral estoppel barred the claim for pre-suit damages made by the plaintiff, United Access Technologies, LLC (“United Access”). Frontier sought estoppel on the basis of a decision from an earlier litigation in which United Access’s predecessors-in-interest were precluded from recovering pre-suit damages for failure to mark under 35 U.S.C. § 287(a) as of the date that lawsuit was filed (in 2002).

But Judge Stark found that the issue in the earlier decision was not identical to the current issue (and thus not a candidate for estoppel), since United Access here seeks damages for the period between April 2005 and July 2009. The Court explained that a failure to mark before 2002 does not foreclose the possibility that marking in accordance with Section 287(a) began before or during the damages period in this lawsuit. Thus, Judge Stark denied the motion for judgment on the pleadings.

Key Points:  For collateral estoppel, the identical issue, not just a similar issue, must have been previously litigated.

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