I have a new draft article on the Kessler Doctrine co-authored with my former student Homayoon Rafatijo and welcome comments and suggestions before it is formally published later this month.
- Download it here: Resorbing Patent Law’s Kessler Cat into the General Law of Preclusion
- Send comments: firstname.lastname@example.org
Kessler is a 1907 Supreme Court decision that we argue should be seen as simply implementing defensive issue preclusion. At the time, the case involved some additional novelties having to do with confusion over both the new appellate federal court structure and the scope of potential anti-suit injunctions. Meanwhile, the scope of issue and claim preclusion have expanded with the merger of law & equity, creation of the Federal Rules Rules of Civil Procedure, as well as the expansion of Declaratory Judgment jurisdiction.
As issue and claim preclusion expanded, Kessler fell from fashion and was basically unneeded and unused for several decades. But, since 2014, the Federal Circuit has steadily expanded Kessler as a patent law specific form of preclusion that is separate and distinct from the traditions of claim and issue preclusion. We argue argue this approach is wrong.
The cat: We parallel our article alongside a short parable from Paulo Coelho titled the “Importance of the Cat in Meditation.” The basic punchline is that once people started thinking the cat was an important element of mediation, it was easier for them to scientifically explain the importance rather than let go of the meaningless attachment. We argue that the Kessler Doctrine is following the same pathway, the Federal Circuit’s explanations do not make sense, and that it is time to resorb the doctrine into the general law of preclusion.
Thanks! Dennis Crouch