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Federal Circuit Needed to Clear Up IPR Estoppel Divide

March 13, 2017

Fenwick IP lawyer Jennifer Bush talked to Law360 about how interpretations from the Patent Trial and Appeal Board and district courts of the inter partes review estoppel provision of the America Invents Act have greatly differed, leading some to ask the Federal Circuit for clarity.

Bush told Law360, “I think any time you have essentially the same statute being interpreted to two clearly different outcomes, it’s going to lead to confusion.” Bush added that many would like to see the Federal Circuit weigh in sooner rather than later.

“The Federal Circuit weighing in on this issue directly, it will happen eventually, I think. Until then, unfortunately both the [PTAB] and the courts are kind of spinning their wheels a little bit and both petitioners and patent owners don’t really have a good sense of what the right answer is,” Bush said.

The full article is available through the Law360 website (subscription required).