The court granted in part defendant's motion to dismiss plaintiff's patent infringement claim as barred by res judicata as to one of the patents-in-suit where plaintiff previously sued defendant for trademark infringement. "[T]he same technology and the same accused products are involved in both actions. Under these circumstances, the Court agrees that the trademark and patent claims would have formed a convenient trial unit. . . . The only reason the earlier suit did not contain patent allegations is because [plaintiff] chose not to make them. [Plaintiff] cannot avoid claim preclusion by choosing to omit its then-available patent claims when it brought the earlier action. . . . The same is not true with respect to [one of the patents-in-suit]. [That] patent did not issue until . . . over three months after the trademark action was filed."
Superior Industries, LLC v. Thor Global Enterprises Ltd., 0-10-cv-02524 (MND July 22, 2011, Order) (Davis, J.)