PTAB's Estoppel Rules Lack Teeth, Lawyers Grumble
The Federal Circuit is signaling a narrow read on the AIA's litigation bar, which may raise the price tag on patent suits.
September 04, 2015 at 06:57 AM
5 minute read
Inter partes review marks its third anniversary Sept. 16. Patent claims that survived all the way through final written decision at the Patent Trial and Appeal Board and appeal to the Federal Circuit are now starting to bounce back to district court.
And that raises a thorny new question: How much teeth will the estoppel provision of the America Invents Act have in court?
The answer is likely not a whole lot, judging from some hints dropped at a U.S. Court of Appeals for the Federal Circuit hearing last month. Two judges strongly suggested that petitioners will be estopped only from asserting grounds that were actually raised and decided by the PTAB. Any broader reading would be “untenable,” Judge Todd Hughes suggested. Hughes and Judge Evan Wallach also indicated it may be awhile before the court formally decides the issue.
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