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IPR Estoppel: The Present and the Future
The America Invents Act (AIA) created inter partes review (IPR) to allow the public to challenge issued patents based upon published prior art. IPRs allowed for greater participation for challengers, and replaced the previous inter partes reexamination procedure. IPRs are conducted before a panel of Administrative Patent Judges of the Patent Trial and Appeal Board (PTAB). In contrast, inter partes reexamination was conducted before a patent examiner, and permitted appeal to the PTAB.
The AIA contains estoppel provisions for IPR judgments. Congress included these provisions to address concerns that challengers could harass patent owners through serial filing of IPR petitions. See, 157 Cong. Rec. S1374 (March 8, 2011). The estoppel provisions provide that an IPR petitioner who has received a final decision on a claim may not request or maintain another proceeding against that claim on a ground that the petitioner “raised or reasonably could have raised.” 35 USC §315(e). The estoppel applies in patent office proceedings, district court actions and Section 337 actions by the International Trade Commission.
IPRs have now been conducted for several years, and litigation has ensued over the procedures by which they are conducted. Decisions have been rendered by the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit, which have resolved some issues, created others, and altered procedures.
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