Does § 315(e)(2) Say What It Means and Mean What It Says?, PTAB Litigation Blog

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When an IPR petition results in a final written decision, the IPR petitioner (or the petitioner’s real party in interest or privy) is estopped from asserting in a civil litigation or an ITC action that "the claim is invalid on any ground that the petitioner raised or reasonably could have raised during that inter partes review." 35 U.S.C. § 315(e)(2). While this statutory provision typically arises when a patent holder seeks to estop a defendant/petitioner from asserting in litigation an invalidity theory that the defendant/petitioner lost at the PTAB, what happens when the defendant/petitioner’s invalidity theory prevailed at the PTAB? Can the patent holder then estop the defendant from asserting that invalidity theory in a civil action?

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