Full Federal Circuit Considering Whether to Rehear Panel Ruling Extending Kessler Doctrine

August 16, 2020

This past week the Federal Circuit invited Amazon and several of its customers to file a combined response to a petition for rehearing of a June ruling in their favor. A panel of the appeals court held that the Kessler doctrine precludes PersonalWeb Technologies, L.L.C. from charging customers with infringement through the use of Amazon Simple Storage Service (S3), given a June 2014 stipulated dismissal with prejudice in a Texas suit against Amazon—a dismissal that followed an unfavorable claim construction decision but, critically according to PersonalWeb, before a noninfringement ruling. The NPE characterizes the June decision as a “radical reconfiguration” of preclusion law that requires rehearing. Lawyers for Amazon and its customers have since requested an extension to early October of the deadline to respond to the request for rehearing because they are tied up both with a trial in the Eastern District of Texas and with a separate appeal (concerning noninfringement by Amazon’s CloudFront) from the same underlying litigation against PersonalWeb.

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