I can CAFC clearly now that No. 2 infringes.

The CAFC acknowledges the need for split brain logic when assessing that ‘branch’ of res judicata known as claim preclusion, as just set forth in Acumed v. Stryker. On claim preclusion standards, the CAFC followed the law of the regional circuit, but when it determined what “claim” is or may be precluded by a prior adjudication, the CAFC relied on its own law. Is a blended rule necessary, or an exercise in conspicuous judging? Most circuits follow a Restatement approach, so the CAFC ought to follow in line. If that doesn’t get the CAFC where it wants to be on the issue, then it should disregard the regional circuits and hold that patent litigation preclusion requires a rule applied exclusively in patent cases. “Where, as here, the issue of claim preclusion heavily implicates the patent law, we apply the applicable Federal Circuit precedent. See Hallco, 256 F.3d at 1294; Kearns v. General Motors Corp., 94 F.3d 1553 (Fed. Cir. 1996).”

Next, the Acumed decision creates an impression of being result-oriented, rather than genuinely analytical. The key issue was whether infringement of a known, but unpleaded, device was preserved for later litigation after a judgment on the merits about a related or earlier version of the device. The governing rule would seem to be the “essentially the same” standard set down by the CAFC in Hallco v. Foster, but this panel works about and around that to reverse, and so, allow the second infringement claim to survive claim preclusion. It seems a result-seeking analysis, when one considers past statements about whether an assertion that ‘could have been’ presented is barred by the doctrine of claim preclusion.

“Claim preclusion refers to “the effect of foreclosing any litigation of matters that never have been litigated, because of a determination that they should have been advanced in an earlier suit.” 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4402 (2d ed. 2002); see also Nevada v. United States, 463 U.S. 110, 129-30 (1983) (a final judgment is “a finality as to the claim or demand in controversy . . . not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose” (quoting Cromwell v. County of Sac, 94 U.S. 351, 352 (1877))).

Did not the CAFC so state, weeks ago, in Nasalok v. Nylok (4/14/08)?
So then, how true is, this week in Acumed v. Stryker, that:

“None of these cases, however, support Stryker’s contention that a claim is barred by claim preclusion merely because it could have been raised in a prior action between the parties that was resolved on the merits. “

Once thought is given to whether the 2nd claim may survive under the regional circuit law, then the ‘could’a, should’a’ rule of Acumed v. Stryker is your get out of jail card.