Business Litigation Report - July 2015

Introduction -

Issue preclusion is a familiar concept to most practicing attorneys. Under this doctrine, “later courts should honor the first actual decision of a matter that has been actually litigated.” Charles Alan Wright et al., Federal Practice and Procedure § 4416, at 386 (2d ed. 2002). However, courts have struggled with the question of whether a prior decision by an administrative agency, as opposed to the judgment of an Article III court, can serve as the basis for issue preclusion. The Supreme Court recently addressed this issue in B&B Hardware Inc. v. Hargis Industries, Inc., 135 S. Ct. 1293 (2015), finding that, in certain circumstances, a prior decision by the Trademark Trial and Appeal Board (“TTAB”) can have a preclusive effect on an Article III court. This article explores the rationale behind B&B Hardware and the potential impact of that decision on practice before both the TTAB and other administrative agencies charged with deciding issues related to intellectual property.