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Expert Analysis

Fed. Circ. Weighs In On Prosecution Disclaimer In IPR

By Jesse Jenike-Godshalk and Michael Nieberding (June 19, 2017, 11:51 AM EDT) -- In a recent decision, the U.S. Court of Appeals for the Federal Circuit held that statements made by patentees during an inter partes review can constitute prosecution disclaimer. Under the concept of prosecution disclaimer, a patentee cannot clearly and unmistakably disclaim a certain meaning for its patent claims during prosecution and then try to recapture this same meaning during claim construction in subsequent litigation. Prosecution disclaimer can be thought of as a type of estoppel. The patentee is estopped from taking a position inconsistent with its earlier position....

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