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" ... At Monday’s argument, a clear sign of trouble for plaintiffs will be questions focusing on the danger of serial class actions. If the Ninth Circuit’s ruling is upheld, there is a theoretical possibility that plaintiffs’ lawyers could file an infinite number of putative class actions until they finally find a judge willing to certify a plaintiff class. After each successive denial of class certification, lawyers could simply file another lawsuit on behalf of a new group of absent class members. If equitable tolling were applied, the claims of each new group would be timely, and the presence of a new group of named plaintiffs would mean that the defendant could not invoke preclusion doctrines as a basis for preventing consideration of a renewed certification motion. ... "
" ... Equally troubling, all the costs the ITC is currently imposing are unnecessary. The federal judiciary is well equipped to enforce the rights of valid patent holders. There is no reason to offer a second front to litigate private parties’ contract questions through the ITC, especially with the enormous risk of market preclusion hanging over the dispute. ... "