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Disclaimer Before Institution May Not Avoid Adverse Judgment Estoppel, PTAB Litigation Blog

February 2018

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In a split decision that drew separate opinions from each of the panel members, the Federal Circuit recently affirmed the PTAB’s decision to enter an adverse judgment against a patentee, even though the patentee had properly disclaimed all of the challenged claims prior to institution, and had specifically requested that the Board not enter an adverse judgment. Arthrex, Inc. v. Smith & Nephew, Inc., No. 2017-1239 (Fed. Cir. Jan. 24, 2018).

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