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Takeaways: If a patent infringement action is voluntarily dismissed by prejudice, the Kessler Doctrine grants the winning party (non-patent owner) a limited commercial right to continue to produce, use and sell the product in question. Such an agreed termination serves as a decision on the merits of the exclusion of claims, unless the termination agreement preserves the rights of the applicant (patent owner) to sue the same or other parties in the future. Therefore, settlement agreements in the event of patent infringement should be designed in such a way as to highlight any restrictions on the effect of excluding termination. Party City filed a motion for summary judgment in the Pennsylvania case, arguing that the Pennsylvania case was excluded by the previous transaction under the principles of legal force. Res judicata applies when there are three circumstances: (1) a final judgment on the merits in a previous trial involving the same parties or their privileges; (3) a subsequent action based on the same plea. In an order of 27 January 2017, the court dismissed the application and found that Party City was not in a position to find the second element. The simple application of the legal principles by the court is not surprising, let alone, because there is no indication that Party City has committed to making its website accessible in the confidential settlement agreement – the solution sought in the Pennsylvania case. Public transaction agreements that require a company to make its website accessible or a consent decree by which a court orders a company to make its site accessible are much more likely to discourage additional complaints about site accessibility. Companies that have the judicial instruction to make their sites accessible have a strong argument that a subsequent action by ADA Title III is being challenged, given that the only remedy that can be obtained in such a remedy – the right to omission – has already been ordered. The plaintiffs are also likely to find companies that have contractually committed to making their websites accessible as less attractive targets, since the work can be completed, while the second appeal is pending, with the application being unloaded.
Ultimately, the best deterrent is a website that is accessible to users with disabilities. While there is still no legal standard for accessibility (and with the regulatory measures taken by the current government, it seems likely that a standard for web content accessibility will be published in the near future), web content accessibility guides, 2.0 levels A and AA are widely used in the industry as a de facto standard. . . .