Today, Wed., Mar. 14, 2012, in Aspex Eyewear v. Marchon Eyewear, No. 2011-1147, the Federal Circuit (Rader, Bryson and Reyna) ruled that res judicata barred a patent owner from asserting new and amended claims issued from reexamination against products that were found not to infringe the original patent. The Court also ruled that a patent owner may include new products in a pending litigation, but is not required to do so. Issue preclusion, however, may apply to those new products in a following action.
This case provides a good discussion of res judicata and issue preclusion as applied to reexamined claims, asserted claims and new products.