35
U.S.C. § 315(e)(1) and (2) are the statutory provisions
regarding petitioner estoppel in IPRs. These provisions dictate
that, after a final written decision is issued, a petitioner (and
its real parties in interest and privies) are estopped from
asserting in a subsequent USPTO proceeding, district court case, or
ITC investigation "any ground that petitioner raised or
reasonably could have raised" during the IPR in other
proceedings before the USPTO, in district court, or in the ITC.
Although
the Federal Circuit has interpreted estoppel narrowly, district
courts were split, and estoppel's impact has remained in flux
for several years. The Federal Circuit decisions led some
petitioners to present multiple unpatentability grounds in their
IPR petitions with the expectancy that some grounds would be denied
institution and therefore preserved against estoppel. But,
the U.S. Supreme Court's recent SAS Institute Inc. v.
Iancu decision—leading
