By Michael Guo and Matthew Kreeger (September 5, 2017, 12:43 PM EDT) -- Inter partes review has become an enormously popular method of challenging patents. One important downside of filing for IPR, however, is that, if the petitioner loses, it faces an estoppel that could prevent it from raising invalidity defenses in the future. The scope of that estoppel remains unclear. When the America Invents Act established IPR five years ago, most practitioners expected that broad estoppel would apply to preclude a losing petitioner from later asserting almost any prior art invalidity grounds based on patents or printed publications. But recent authority has raised the possibility that a losing petitioner could face much more limited estoppel. We present in this article some strategies that IPR petitioners can implement to try to minimize possible estoppel, preserving their ability to raise invalidity issues in the future....
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