With inter partes review (IPR), a party may challenge the validity of a patent by petitioning the U.S. Patent and Trademark Office for review of the claims based on one or more grounds of invalidity. The merits of the grounds are decided by the Patent Trial and Appeal Board (PTAB). IPRs are becoming a popular option for invalidating patents in an expeditious and cost-effective manner.
However, there is a catch. Petitioners should be mindful of the estoppel that attaches to any claim on which the PTAB reaches a final decision. After a final decision, the petitioner is barred from raising in a later civil action any argument it raised or “reasonably could have raised” in the IPR. 35 U.S.C. §§ 315(e).
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