Dr. Richard Sowinski loses at the CAFC under FRCP 41(b)

The issue: Dr. Sowinski argues that the merits of patent infringement were not adjudicated in Sowinski I, for the action was dismissed because he did not comply with the district court’s local rule for responding to a motion to dismiss. He argues that this was not a final judgment on the merits, because the dismissal was based on the technicality of a local deadline. He states that the imposition of res judicata on this basis is “manifestly unjust” because there was no trial of the question of infringement, and that if an infringement suit is now barred his patent is essentially invalidated because the CARB Cap-and-Trade Program is the only known infringing activity. BUT Federal Rule of Civil Procedure 41(b) provides that a dismissal for failure to prosecute “operates as an adjudication on the merits,” with exceptions not here applicable: 41(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits. . . . The Federal Circuit has applied these principles. See, e.g., Nystrom v. Trex Co., 580 F.3d 1281, 1284-85 (Fed. Cir. 2009) (“In its simplest construct, [claim preclusion bars] the relitigation of a claim, or cause of action, or any possible defense to the cause of action which is ended by a judgment of the court.”); Senju, supra.