university foundation argued january decided may holding triplett lowell determination patent invalidity res judicata patentee subsequent litigation different defendant overruled extent forecloses estoppel plea one facing charge infringement patent declared invalid infringement suit triplett petitioner plead estoppel patentee opportunity challenge appropriateness plea parties allowed amend pleadings introduce evidence estoppel issue pp vacated remanded white delivered opinion unanimous robert rines argued cause petitioner brief richard phillips paul foley nelson shapiro william marshall argued cause respondent university illinois foundation brief charles merriam basil mann sidney faber argued cause respondent jfd electronics brief jerome berliner robert faber myron cass assistant attorney general mclaren argued cause amicus curiae urging reversal brief solicitor general griswold assistant attorney general gray peter strauss howard shapiro walter fleischer briefs amici curiae filed donald dunner james gambrell brown morton american patent law association theodore anderson automatic electric harold mcnenny john pearne walther wyss finney joseph brennan richard mason kawneer justice white delivered opinion respondent university illinois foundation hereafter foundation owner assignment patent issued dwight isbell october patent frequency independent unidirectional antennas isbell first filed application may antennas covered designed transmission reception electromagnetic radio frequency signals used many types communications including broadcasting radio television signals patent much litigated since granted primarily claims high quality television antenna color reception one first infringement suits brought foundation filed southern district iowa winegard antenna manufacturer trial pursuing inquiry mandated graham john deere chief judge stephenson held patent invalid since obvious one ordinarily skilled art wishing design frequency independent unidirectional antenna combine three old elements suggested prior art references previously discussed university illinois foundation winegard supp sd iowa omitted accordingly entered judgment alleged infringer patentee appeal appeals eighth circuit unanimously affirmed judge stephenson denied patentee petition certiorari march well judge stephenson ruled winegard case foundation also filed suit northern district illinois charging chicago customer petitioner laboratories hereafter infringing two patents owned assignment isbell patent patent reissued march mayes et al mayes patent entitled log periodic backward wave antenna array indicated reissue applied september chose subject jurisdiction defend customer filed answer counterclaim foundation licensee respondent jfd electronics charging isbell mayes patents invalid patents valid antennas infringe either foundation jfd guilty unfair competition foundation jfd violated laws including sherman clayton acts amended certain jfd antenna models infringed patent antenna combined support issued july trial june judge hoffman held foundation patents valid infringed dismissed unfair competition antitrust charges found claim patent obvious invalid discussing isbell patent detail judge hoffman noted held invalid obvious judge stephenson winegard litigation stated course free decide case bar basis evidence triplett lowell although patent adjudged invalid another patent infringement action defendants patent owners deprived right show defendants previously patent valid infringed aghnides holden cir basis evidence disagrees conclusion reached winegard case finds isbell patent mayes et al patent valid enforceable patents app sought certiorari assigning conflict courts appeals seventh eighth circuits validity isbell patent primary reason granting writ granted certiorari subsequently requested parties discuss following additional issues raised petition review holding triplett lowell determination patent invalidity res judicata patentee subsequent litigation different defendant adhered determination invalidity winegard litigation bind respondents case triplett lowell held neither reason authority supports contention adjudication adverse claims patent precludes another suit upon claims different defendant earlier decision may comity given great weight later litigation thus persuade render like decree res adjudicata may pleaded defense brief foundation urges rule triplett maintained petitioner brief took position stating hough petitioners stand gain result urge destruction safeguard patentees merely expediency victory brief petitioner government however appearing amicus curiae urges triplett based uncritical acceptance doctrine mutuality estoppel since limited significantly time come modify triplett claims estoppel patent cases considered case case basis giving due weight factors point unfair anomalous result allowance brief government position spelled brief filed month petitioner filed brief oral argument following colloquy occurred counsel asking triplett overruled maintain brother right genuine new issue interpretation patent claim interpretation law another circuit different circuit right try triplett another circuit particular case stuck substantially documentary evidence able produce seventh circuit even modicum expert testimony existed eighth circuit think may suggested solicitor general reason modification document sic case tr oral arg ii triplett lowell exemplified doctrine mutuality estoppel ordaining unless parties privies second action bound judgment previous case neither party privy second action may use prior judgment determinative issue second action triplett decided opinion stated rules common law applicable successive litigations concerning subject matter preclude relitigation validity patent claim previously held invalid suit different defendant bigelow old dominion copper stated principle general elementary law estoppel judgment must mutual rule reflected restatement judgments restatement judgments even time triplett decided certainly time restatement published mutuality rule fire courts discarded requirement mutuality held party plea estoppel asserted privity party prior action judge friendly noted bentham attacked doctrine destitute semblance reason maxim one suppose found way bench zdanok glidden cert denied quoting bentham rationale judicial evidence reprinted works jeremy bentham bowring ed also ferment scholarly quarters building upon authority cited california bernhard bank america nat trust savings cal unanimously rejected doctrine mutuality stating compelling reason requiring party asserting plea res judicata must party privity party earlier litigation justice traynor opinion handed year restatement published listed criteria since employed many courts many contexts determining validity plea res judicata three questions pertinent issue decided prior adjudication identical one presented action question final judgment merits party plea asserted party privity party prior adjudication cal bernhard significant impact many state federal courts rejected mutuality requirement especially prior judgment invoked defensively second action plaintiff bringing suit issue litigated lost plaintiff prior action trend apparent cases federal courts found bernhard persuasive judge hastie stated years ago second effort prove negligence comprehended generally accepted precept party one fair full opportunity prove claim failed effort permitted go trial merits claim second time orderliness reasonable time saving judicial administration require unless overriding consideration fairness litigant dictates different result circumstances particular case countervailing consideration urged lack mutuality estoppel present suit plaintiff permitted take advantage earlier affirmative finding negligence finding made first suit different defendant reason argues bound contrary finding case finding negligence plaintiff first suit binding defendant second suit defendant opportunity contest issue finding negligence hand made full opportunity plaintiff election prove matter urges second time thus unfairness results estoppel mutual reality argument plaintiff merely application res judicata case makes law asymmetrical achievement substantial justice rather symmetry measure fairness rules res judicata bruszewski cert denied course transformation estoppel law neither instantaneous universal late eminent authority stated ost state courts recognize apply doctrine mutuality subject certain exceptions true federal courts free apply doctrine moore currier mutuality conclusiveness judgments tul rev footnotes omitted see also moore federal practice pp however professor moore noted trend federal courts away rigid requirements mutuality advocated herein supp trend evident state courts undeniably doctrine mutuality estoppel undergoing fundamental change tradition pristine formulation increasing number courts rejected principle unsound irrelevant abrogation mutuality accompanied developments expansion definition claim bar merger contexts expansion preclusive effects afforded criminal judgments civil litigation enhance capabilities courts deal issues swiftly fairly obviously mutations estoppel doctrine us wholesale approval rejection least counsel us whether mutuality estoppel viable rule patentee seeks relitigate validity patent federal declared invalid iii cases authorities discussed connect erosion mutuality requirement goal limiting relitigation issues achieved without compromising fairness particular cases courts often discarded rule commenting crowded dockets long delays preceding trial authorities differ whether public interest efficient judicial administration sufficient ground abandoning mutuality clear crowded dockets involved broader question whether longer tenable afford litigant one full fair opportunity judicial resolution issue question terms includes part calculus effect judicial administration also encompasses concern exemplified bentham reference gaming table attack principle mutuality estoppel lawsuit defendant mutuality principle forced present complete defense merits claim plaintiff fully litigated lost prior action arguable misallocation resources extent defendant second suit may win asserting without contradiction plaintiff fully fairly unsuccessfully litigated claim prior suit defendant time money diverted alternative uses productive otherwise relitigation decided issue still assuming issue resolved correctly first suit reason concerned plaintiff allocation resources permitting repeated litigation issue long supply unrelated defendants holds reflects either aura gaming table lack discipline disinterestedness part lower courts hardly worthy wise basis fashioning rules procedure kerotest mfg although neither judges parties adversary system performs perfectly cases requirement determining whether party estoppel asserted full fair opportunity litigate significant safeguard litigants never appeared prior action may collaterally estopped without litigating issue never chance present evidence arguments claim due process prohibits estopping despite one existing adjudications identical issue stand squarely position see hansberry lee bernhard cal also authorities willing permit defendant second suit invoke estoppel plaintiff lost claim earlier suit allow plaintiff second suit use offensively judgment obtained different plaintiff prior suit defendant case us involves neither due process offensive use questions rather depends considerations weighing permitting patent holder sue patent held invalid following opportunity full fair trial several components problem first analyze proposed abrogation modification triplett rule terms considerations relevant patent system second deal broadly economic costs continued adherence triplett finally explore nature burden permitting patentees relitigate patents held invalid imposes federal courts starting premise statutes creating patent system expressly sanctioned constitution represent affirmative policy choice congress reward inventors respondents extrapolate special public interest sustaining good patents characterize patent litigation technical difficult present unusual potential unsound adjudications although triplett made argument support holding rule offering unrestricted right relitigate patent validity thus deemed essential safeguard improvident judgments invalidity fully accept congressional judgment reward inventors patent system also aware courts frankly stated patent litigation present issues complex legal minds without appropriate grounding science technology may difficulty reaching decision hand observed issues nonobviousness present difficulties comparable encountered daily courts frames reference negligence scienter amenable development graham john deere assuming patent case difficult provoke frank admission judicial uncertainty one might ask reason expect second district judge appeals able decide issue accurately moreover graham also indicates congress outset chosen impose broad criteria patentability lodging federal courts final authority decide question event sensibly contended issues concerning patent validity complex unyielding nonobviousness always difficult perceive decide questions patentability depends often difficult encountered usual nonpatent case even conceding extreme intricacy patent cases keep firmly mind considering situation patentee plaintiff prior suit chose litigate time place presumably prepared litigate litigate finish defendant involved patent litigation characteristically proceeds deliberation avenues discovery available present rules procedure reason suppose plaintiff patentees face either surprise unusual difficulties getting relevant probative evidence first litigation moreover suggest without legislative guidance plea estoppel infringement royalty suit defendant must automatically accepted defendant support plea identifies issue suit identical question finally decided patentee one privies previous litigation rather must permitted demonstrate fair opportunity procedurally substantively evidentially pursue claim first time eisel columbia packing supp mass element estoppel decision comprehend believe important concerns complexity patent litigation posited hazard prior proceedings seriously defective determining whether patentee full fair chance litigate validity patent earlier case necessity simple matter addition considerations choice forum incentive litigate mentioned certain factors immediately emerge example issue nonobviousness appropriate inquiries whether first validity determination purported employ standards announced graham john deere supra whether opinions filed district reviewing indicate prior case one relatively rare instances courts wholly failed grasp technical subject matter issues suit whether without fault patentee deprived crucial evidence witness first litigation often case one set facts one collection words phrases provide automatic formula proper rulings estoppel pleas end decision necessarily rest trial courts sense justice equity persuaded therefore triplett rule formulated essential effectuate purposes patent system indispensable even effective safeguard faulty trials judgments whatever legitimate concern may intricacies patent suits insufficient justify patentees relitigating validity issues long new defendants available especially true second litigation must decide principled way whether equitable allow plea estoppel case examination economic consequences continued adherence triplett two branches however begin acknowledged fact patent litigation costly process judge frank observed expense defending patent suit often staggering small businessman picard aircraft concurring opinion lear adkins noted one benefits accruing businessman accepting license patentee threatening suit avoiding necessity defending expensive infringement action period may least able afford one similarly replying claims alleged infringers guilty laches suing patents patentees claimed expense litigating forced postpone bringing legal action see baker mfg whitewater mfg recent congressional hearings revision patent laws discussing proposal american society inventors insurance provide funds litigation individual inventors holding nonassigned patents stated advised average cost litigating patent statement arguments one made baker supra must assessed light fact advanced patentees contemplating action plaintiffs patentees heavily favored class litigants patent statute section patent code provides pertinent part patent shall presumed valid burden establishing invalidity patent shall rest party asserting statistics tend bear patent suits constitute total number civil cases filed year district courts despite relatively small figure notwithstanding overwhelming tendency try suits without juries patent cases go trial seem take inordinate amount trial time senate staff report stated typical patent trial without jury completed days less recent figures indicate description time required today inaccurate time particularly trial time unquestionably expensive stated outset section expense patent litigation two principal consequences triplett rule maintained first assuming perfectly sound judgment invalidity rendered earlier suit involving patentee second infringement action raising issue involving much proof high cost individual parties patentee expending funds litigation protect patent hypothesis invalid moneys put better use research development alleged infringer operating must presumption validity forced divert substantial funds litigation wasteful second major economic consideration far significant triplett comity restraints flowing adverse prior judgment operate limit patentee right sue different defendants patent successive suit patentee enjoys statutory presumption validity may easily put alleged infringer expensive proof consequence prospective defendants often decide paying royalties license settlement preferable costly burden challenging patent problem surfaced drawn comment see nickerson kutschera dissenting opinion picard aircraft concurring opinion senate judiciary subcommittee patents trademarks copyrights published staff study infringement declaratory judgment actions terminated district courts courts appeals report showed actions commenced earlier determination patent suit valid also noted vast majority suits terminated without second adjudication validity staff report apparent termination without second adjudication validity result licensing agreement settlement parties second suit also important recognize study covered cases filed terminated undoubtedly suits threatened filed threat alone sufficient forestall challenge patent borne observations president commission patent system recent testimony proposals changes patent laws motivated economic consequences repetitious patent litigation commission proposed final federal judicial determination declaring patent claim invalid shall rem cancellation claim shall indicated patent copies subsequently distributed patent office recommendation xxiii commission report senate hearings member president commission remarked businessman subjected considerable harassment alleged infringer even cases feels strongly patent ultimately held invalid considers hundreds thousands dollars complex cases involved defending suit may conclude best course action settle less get rid problem nuisance settlements although distasteful often present system justified pure economics many instances survival small businessman may stake cost fully litigating claim seriously impair ability stay business senate hearings patent nature affected public interest exception general rule monopolies right access free open market social economic consequences patent therefore give public paramount interest seeing patent monopolies spring backgrounds free fraud inequitable conduct monopolies kept within legitimate scope precision instrument mfg automotive maintenance machinery necessities convenience patentee justify use monopoly patent create another monopoly fact patentee power refuse license enable enlarge monopoly patent expedient attaching conditions use masonite method monopoly sought extended immaterial univis lens patent privilege privilege conditioned public purpose results invention limited invention defines two terms ago lear adkins relied lines authority abrogate doctrine contract action unpaid patent royalties licensee patent estopped proving licensor demanding royalties use idea reality part public domain principle federal law requires ideas general circulation dedicated common good unless protected valid patent found support sears compco first line cases discussed holding licensee estoppel longer tenable rooted second line cases eliminating obstacles suit disposed challenge validity patent moreover indicated earlier relied practical considerations patent licensees may often individuals enough economic incentive challenge patentability inventor discovery sure lear obviates extent concern triplett prompts alleged infringers pay royalties patents previously declared invalid rather engage costly litigation infringement suits threatened lear permits accused infringer accept license pay royalties time cease paying financially able litigate validity secure knowledge invalidity may urged sues unpaid royalties nevertheless claims fact invalid identical invalidated previous suit another party royalties actually paid unjust increment alleged infringer costs payments put competitive disadvantage alleged infringers afford litigate successfully litigated patent validity several economic consequences first alleged infringer afford defend may absorb royalty costs order compete manufacturers secured holdings patent invalid cutting profitability business perhaps assuring never financial position challenge patent hand manufacturer secured judicial holding patent invalid may able increase market share substantially may without coming close price levels prevail competitive market free royalty payments manufacturer judgment patent may price products higher competitive levels absent invalid patent yet levels set manufacturers must pay royalties third consumers pay higher prices goods covered invalid patent true initial ruling invalidity least potential broader effect even alleged infringer escape royalty obligations lear able bear cost litigation royalty payments passed consumers practical matter unrecoverable fact paid beyond rule triplett may permit invalid patents serve almost effectively valid patents barriers entry new firms particularly small firms economic consequences like extent avoided weigh favor modification triplett mutuality principle arguably however availability estoppel one charged infringement patent previously held invalid merely shift focus litigation merits dispute question whether party estopped full fair opportunity litigate claim first action moore currier supra seem sufficient answer note determined issue actions identical easier decide whether full opportunity determine issue first action relitigate completely question validity fact seem problem contexts strict mutuality estoppel abandoned also suggested allows award reasonable attorney fees prevailing party exceptional cases patentee forfeits right recover costs even valid claims patent disclaim invalid claims bringing suit work inhibit repetitious suits invalid patents neither provisions operate litigation occurred outlay required try lawsuit presenting validity issues factor undoubtedly forces many alleged infringers accepting licenses rather litigating concern license agreements proper cases indicate accused infringer available estoppel defense pleaded affirmatively determined pretrial motion judgment pleadings summary judgment fed rules civ proc preceding discussion indicates although patent trials small portion total amount litigation federal courts tend disproportionate length despite respondents urge burden federal courts relitigation patents held invalid de minimis rely figures presented staff report period federal suits terminated involved relitigation patent previously held invalid figure constituting patent suits commenced period figures show suits involved patents indicating patentees sue patent invalidated respondents also urge suits settled without litigation staff report suggested fact cuts ways even accepting respondents characterization figures de minimis clear abrogation triplett save judicial time even relatively lengthy patent suits may fairly disposed pleas estoppel fundamentally cases discuss reduction dockets effect elimination mutuality requirement purport hold predictions actual amount judicial time saved holding control decision question course comparable figures past decade concerning suits begun one declaration invalidity although number recent significant examples repeated litigation patent come attention regardless magnitude figures economic consequences continued adherence triplett serious reduction litigation context comparison incidental matter considering whether abrogate mutuality requirement clear judicial decisions tended depart rigid requirements mutuality accordance trend corresponding development lower courts ability facility dealing questions appropriate fair impose estoppel party already litigated issue lost one commentator stated tests time subsequent developments bernhard decision proved merit mettle author abrasive action new factual configurations actual human controversies disposed tradition competent courts far commentaries academicians leaves decision revealed written shining landmark progress justice law administration currie iv res judicata collateral estoppel affirmative defenses must pleaded fed rule civ proc purpose pleading give opposing party notice plea estoppel chance argue imposition estoppel inappropriate triplett lowell petitioner plead estoppel respondents never opportunity challenge appropriateness plea grounds set forth part opinion therefore given partial overruling triplett remand case petitioner allowed amend pleadings district assert plea estoppel respondents must permitted amend pleadings supplement record evidence showing estoppel imposed case necessary petitioner may also supplement record taking action intimate views issues presented case judgment appeals vacated cause remanded district proceedings consistent opinion footnotes foundation claimed isbell patent claims except numbers infringed one winegard antenna models designed receiving television signals district judge held skilled art antenna design time isbell application knew log periodic method designing frequency independent antennas antenna arrays consisting straight dipoles progressively varied lengths spacings exhibit greater broad band characteristics consisting dipoles equal length spacing dipole array type antenna elements spaced less wavelength apart made unidirectional radiation pattern transposing feeder line elements feeding array end smallest element opinion obvious one ordinarily skilled art wishing design frequency independent unidirectional antenna combine three old elements suggested prior art references previously discussed see petition certiorari grant certiorari limited validity vel non isbell patent see also nickerson kutschera hastie dissenting nickerson kutschera tidewater patent development kitchen aghnides holden schnackenberg concurring technograph printed circuits packard bell electronics supp cd cal holding triplett bar infringement suit defendant motion summary judgment res judicata grounds statements mutuality estoppel dicta triplett rule conflicted recent precedent estoppel area also spirit certain provisions federal rules civil procedure adopted six years triplett decided nickerson pep boys manny moe jack supp del latter case judge steel imposed estoppel facts somewhat similar us analyzed cases relied triplett concluded rom standpoint precedents cities triplett lowell rest upon solid foundation cf technograph printed circuits cl agrashell bernard sirotta supp edny rebuttal counsel petitioner made clear urging modification triplett well petitioner finally decided forego request reconsidering triplett entirely part understood previously say welcome modification extent well honor think correct question asked us brief triplett overruled answered question modification think law somebody abusing exceptions think solicitor general close using idea fact trial opportunity present witnesses seriously considered whether estoppel situation tr oral arg instant case one parties briefed argued question nevertheless finds controlling authority notice plain error see rule rules silber rather given transpired oral argument case like moragne marine lines granting certiorari asked parties brief argue continued validity harrisburg petitioner stood gain harrisburg perished argued decision overruled strongly maintained unnecessary order afford relief respondent course argued harrisburg left intact appearing amicus curiae urged overrule harrisburg result moreover landmark decision involving important question judicial administration federal courts overruled prior decision many years standing although parties urge holding briefs erie tompkins see also jackson struggle judicial supremacy question hardly comparable importance significant one general field fully briefed argued parties amici see moragne cf nlrb pittsburgh see also stone farmers bank keokuk missouri litchfield goodnow bigelow also spent time discussing one many exceptions mutuality requirement exceptions described moore currier mutuality conclusiveness judgments tul rev note geo rev topic head persons parties privies provides general rule except stated person party privy party action valid judgment judgment rem rendered directly collaterally attack judgment bound entitled claim benefits adjudication upon matter decided action brings action infringement patent defends ground alleged patent void obtains judgment brings action infringement patent seeks interpose judgment favor res judicata setting relation demurrer judgment atkinson white jenkins atlantic coast line wexler edny brobston darby borough eagle star british dominions ins heller liberty mutual ins george colon coca cola del super see also good health dairy products emery latter case new york appeals stated true owner automobile party earlier actions chance litigate rights liabilities bound judgments entered therein hand valid ground allowing plaintiffs litigate anew precise questions decided case parties principle attacked cox res adjudicata entitled plead rev comment yale comment rev note rev recent decisions rev recent cases cin rev cf von moschzisker res judicata yale comment rev recent cases harv rev discussion distinction see generally vestal judicata variables parties iowa rev note geo rev see also currie mutuality collateral estoppel limits bernhard doctrine stan rev note rev note cornell cases law applied federal law noted held cases since erie tompkins federal courts apply rule res judicata heiser woodruff see also vestal res judgment law applied federal courts rev cases cited nn see lober moore app provident tradesmens bank trust lumbermens mutual cas seguros tepeyac compania mexicana jernigan cert denied cauefield fidelity cas new york cert denied graves associated transport kurlan commissioner air lines supp ed aff res judicata sub nom air lines wiener zdanok glidden supra davis mckinnon mooney people ohio cas ins adriaanse cert denied maryland capital airlines supp md mathews new york racing supp sdny eisel columbia packing supp mass see cases cited supra recent canvass cases presented note geo rev oregon recent state adopt bernhard bahler fletcher see also pennington snow alaska ellis crockett haw pat perusse realty lingo md sanderson balfour home owners fed savings loan assn northwestern fire marine ins mass approving use bernhard defendant previously losing plaintiff dewitt hall lustik rankila lucas velikanje app lower state appellate held state follow bernhard appropriate case howell vito trucking excavating app desmond kramer super lynch chicago transit authority app see james civil procedure vestal res judgment law applied federal courts rev see moore teitelbaum furs dominion ins cal eagle star british dominions ins heller vestal supra vestal coughenour judicata variables criminal prosecutions vand rev agree government congress approved triplett rule either failure modify rule years see boys markets retail clerks union girouard helvering hallock anything transpired preparation accomplishment revision patent code rem invalidity provisions see infra disappeared recent proposals reform patent statute professors moore currier point one underpinnings general concept res judicata prevention harassment litigants repeated assertion different claims others problem simply present person asserting estoppel party privy party earlier suit argue doctrine judicial finality catchpenny contrivance dispose cases merely sake disposition clear dockets manner moore currier supra hand professor vestal argues udges overwhelmed docket loads looking devices expedite work preclusion offers opportunity eliminate litigation necessary desirable vestal supra see air lines supra zdanok glidden supra currie civil procedure tempest brews rev vestal iowa cf semmel collateral estoppel mutuality joinder parties rev weinstein revision procedure problems class actions buffalo rev note geo rev art cl claims stated patent litigation special reason relitigation automatically banned needless redundant error perpetuated without inquiry patent validity raises issues significant public well named parties sinclair carroll interchemical important good patent ultimately upheld bad one definitively stricken time must remembered issue patent validity often fugitive impalpable wayward vague phantom exists whole paraphernalia legal concepts issue troublesome apt litigation aware harries air king products supra per hand intrinsic nature subject first decision quite wrong derived insufficient record presentation technograph printed circuits ct see nyyssonen bendix harries air king products mulford sdny triplett rule apparently operates defeat plea estoppel patent declared invalid provisions section defining nonobviousness subject matter prerequisite patentability giving rise many technical issues claimed courts poorly equipped judge act patentability also conditioned novelty utility subsections result loss patent involve completely nontechnical issues yet breadth triplett force defendants repetitious suits patent invalidated one grounds repeat proof may simple understanding yet expensive produce see nn infra see zdanok glidden teitelbaum furs cal cf berner british commonwealth pacific airlines argued one factor considered deciding whether allow plea estoppel second action possibility judgment first action compromise verdict jury problem however deemed sufficient preclude abrogation mutuality principle contexts appear significant consideration deciding sustain plea estoppel patent litigation since patent cases tried see infra hearings patent law revision subcommittee patents trademarks copyrights senate committee judiciary statement henry cappello president space recovery research center consultant patent policy national small business association hereafter senate hearings hearings patent law revision subcommittee patents trademarks copyrights senate committee judiciary statement james birkenstock vice president hereafter senate hearings significant president commission identified one primary objectives reduc ing expense obtaining litigating patent promote progress useful arts age exploding technology report president commission patent system hereafter commission report judge rich customs patent appeals whose public reaction commission report mixed agree itigation expensive one embarks upon lightly rich proposed patent legislation comments geo rev fiscal civil actions filed federal district courts patent suits fiscal civil suits filed involved patents fiscal civil suits initiated involved patents annual report director administrative office courts fiscal year ended june table annual report director administrative office courts fiscal year ended june table annual report director administrative office courts fiscal year ended june table temp ed hereafter annual report patent cases tried fiscal total number patent cases going trial number patent cases going juries respectively annual reports table table compares patent cases tried fiscal nonjury civil cases tried years reveals several facts something civil litigation concluded within three full trial days less half patent cases concluded period time whereas civil nonjury trials general require trial days patent cases tried require days conclude trend district courts appears toward expeditious handling civil cases tried without jury terms annual increase percentage cases concluded three trial days less overall decrease percentage cases requiring days trends patent litigation exactly contrary fiscal fiscal fiscal total patent trials approx civil cases concluded trial days less approx patent cases concluded trial day less approx civil trials taking trial days conclude approx patent trials taking trial days conclude source annual reports table analysis patent litigation statistics staff report subcommittee patents trademarks copyrights senate committee judiciary committee print hereafter staff report see supra staff report also noted fiscal years nine patent trials consumed days examination recent figures administrative office courts indicates statement also questionable validity today fiscal civil trials took days try terminated five patent cases comparable figures fiscal civil trials requiring days concluded seven patent cases fiscal civil cases terminated seven suits patent cases annual reports table estoppel cancellation action federal issue validity scope claim patent properly owner patent shown records patent office party given notice provided subsection section final adjudication appeal taken limiting scope claim holding invalid shall constitute estoppel patentee privity subsequent federal action may constitute estoppel federal actions latter may determine involving patent within thirty days adjudication clerk shall transmit notice thereof commissioner shall place public records patent office pertaining patent endorse notice copies patent thereafter distributed patent office patent subject adjudication action set forth subsection section upon final adjudication appeal taken claim patent invalid may order cancellation claim patent order shall included notice commissioner specified subsection section notice cancellation claim shall published commissioner endorsed copies patent thereafter distributed patent office action federal validity scope claim patent drawn question owner patent shown records patent office shall unconditional right intervene defend validity scope claim party challenging validity scope claim shall serve upon patent owner copy earliest pleadings asserting invalidity owner served pleadings reasonable diligence exercised service may made provided federal rules civil procedure addition notice shall transmitted patent office shall published official gazette cancellation action federal issue validity claim patent drawn question owner patent shown records patent office party given notice provided subsection section may upon final adjudication appeal taken holding claim invalid claim previously held invalid ground competent jurisdiction appeal taken order cancellation claim patent within thirty days order clerk shall transmit notice thereof commissioner shall place public records patent office pertaining patent notice cancellation claim shall published commissioner endorsed copies patent thereafter distributed patent office action federal validity claim patent drawn question owner patent shown records patent office shall unconditional right intervene defend validity claim party challenging validity claim shall serve upon patent owner copy earliest pleadings asserting invalidity owner served pleadings reasonable diligence exercised service may made provided federal rules civil procedure addition notice shall transmitted patent office shall published official gazette see hearings general revision patent laws subcommittee house committee judiciary sess senate hearings supra house hearings testimony rem invalidity provisions covered full spectrum opinion patent section american bar association opposed house hearings department justice favored judicial conference approved provision principle report proceedings judicial conference testimony senate hearings also varied although bills died committee noteworthy ascribing binding effect first federal declaration invalidity proposed provisions went beyond mere abrogation triplett mutuality principle statutes enacted proposed see nn supra question whether patentee full fair opportunity litigate validity patent first suit apparently irrelevant shown patentee received notice validity patent issue see generally sears roebuck stiffel compco lighting kennedy patent antitrust policy search unitary theory geo rev bell telephone see also katzinger chicago mfg cuno automatic devices tea supermarket concurring opinion see also brulotte thys international salt gypsum scott paper marcalus morton salt suppiger ethyl gasoline international business machines carbice american patents motion picture patents universal film walker process equipment food machinery chemical defendant infringement action permitted counterclaim treble damages clayton act asserting patent invalid procured enforced knowledge fraud practiced patent office provided elements necessary monopolization case sherman act present see macgregor westinghouse electric mfg katzinger chicago mfg scott paper marcalus supra sola electric jefferson electric westinghouse electric mfg formica insulation pope mfg gormully see sears see also beckman instruments technical development kraly national distillers chemical supp nd including apparently suit patent previously held invalid second find reasonable argument validity see tidewater patent development kitchen dole valve perfection bar equipment supp nd see nn supra accompanying text see cases cited supra brief petitioner brief amicus curiae