If I Don’t Win On Claim 1, Can I Sue On Claim 2?
Posted on | July 17, 2008 | 16 Comments
2008-1460 Hemphill v. Kimberly-Clark
D/DC 07-1236
Judge Rosemary Collyer
Allegra Hemphill appeals from Judge Rosemary Collyer’s order dismissing her case based on res judicata. She previously sued over the same products and lost, but returns to try a different claim from the same patent.
In 2002 Hemphill sued Kimberly -Clark and co-defendant Proctor & Gamble alleging that the accused products–sanitary napkins and adult incontinence products branded Kotex, Always and Poise–infringed claim 1 of 4,557,720. The district court granted summary judgment of non-infringement, upheld by the Federal Circuit.
Hemphill now alleges that the same products infringe claim 2. On a motion to dismiss, the court took judicial notice of the first case and the fact that the same products are at isse The court then wrote of res judicata:
The doctrine embodies the principle “that a party who once has had a chance to litigate a claim before an appropriate tribunal usually ought not to have another chance to do so."
The court then found the current case barred:
As is readily apparent from the face of the Complaint in conjunction with the decision in Hemphill II, of which the Court takes judicial notice, this case involves the same defendants and products that were at issue in Hemphill II. Compare Def.’s Mem. Ex. 1 at ¶ 13 with Compl. ¶¶ 16-17. Ms. Hemphill makes no assertion to the contrary. It is therefore of no moment that she now accuses Defendants of infringement of Claim 2, for the “nucleus of facts” is identical in both suits. See Foster v. Hallco Mfg. Co., 947 F.2d 469, 479-80 (Fed. Cir. 1991) (“It follows that for claim preclusion to apply here, the devices in the two suits must be essentially the same. . . . Colorable changes in an infringing device or changes unrelated to the limitations in the claim of the patent would not present a new cause of action.”). Ms. Hemphill could have raised the instant allegations in the prior suit. Drake, 291 F.3d at 66. Accordingly, this case must be dismissed.
The court did deny defendants’ motion for sanctions under Rule 11.
More reading:
Counsel:
Allegra Hemphill: pro se
Kimberly-Clark: Kramon and Graham, Baltimore (James Ulwick).
Proctor & Gamble: Jones Day (Gregory Castanias).
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