After winning liability in an infringement case, a patent holder may try to include additional products made by the defendant that were not originally part of the case in the potential damages case. One way to ensure that such products do not slip through the cracks is to bring another action against the same defendant alleging infringement of the same patent by the additional products. But when a patent holder files such a subsequent case, there are two preclusion doctrines that both the patent holder and the defendant may need to take into account: claim preclusion and issue preclusion.
The plaintiff may be able to use issue preclusion to avoid having to prove that the additional products infringe the patents at issue. Conversely, the defendant might be able to use claim preclusion to bar the plaintiff from relitigating claims that were already decided in the prior litigation, including the infringement liability of the additional products. These opposing outcomes can lead to a significant tension between the two doctrines, which can be especially tricky to navigate due to a shared requirement of product similarity.
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