By Asim Bhansali and Nicholas Roethlisberger (October 18, 2021, 5:01 p.m. EDT) — Recent conflicting district court rulings have cast doubt on the scope of estoppel that will be applied to invalidity arguments after the finding of an inter partes review. This uncertainty has not yet been resolved by the United States Court of Appeals for the Federal Circuit, despite a recent opportunity to do so.
Thus, defendants find themselves in the awkward position of not knowing whether prior art will be available to them if and when their case returns to the district court, even when the patents cannot, under the law, consider that art in a valid IPR challenge….
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