Rule 36 Judgment May Support Finding of Collateral Estoppel, PTAB Litigation Blog

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The Federal Circuit recently affirmed final written decisions in two inter partes reviews by holding that the patent owner was collaterally estopped from relitigating the threshold issue of whether a prior art reference was a printed publication. VirnetX Inc. v. Apple, Inc., 2017-2490, 2017-2494 (Fed. Cir. Dec. 10, 2018). In doing so, the CAFC confirmed that a Rule 36 summary affirmance may serve as a basis for collateral estoppel.

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