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Continuing Uncertainty On Scope Of IPR Petitioner Estoppel

Law360, New York (January 4, 2018, 1:25 PM EST) -- The inter partes review procedure includes an estoppel provision that prohibits an IPR petitioner from later raising before the U.S. Patent and Trademark Office, a district court or U.S. International Trade Commission any ground of invalidity of a claim that the petitioner “raised or reasonably could have raised” during the IPR. 35 U.S.C. § 315(e). The seemingly broad scope of the estoppel provision has concerned many petitioners about the risk of losing a patentability challenge in an IPR and being estopped from challenging the same patent claims in the district court or a subsequent IPR. Recently, the Federal Circuit, some district...

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