Estopping a Winning Argument?
One of the stranger developments of recent months has been the
interpretation of PTAB estoppel (315(e)(2)) to foreclose a
petitioner from pursuing arguments in a district court that were
successful at the PTAB. That is, a petitioner that
has successfully defeated claims at the PTAB, and has received a
Final Written Decision (FWD) explaining the same, is thereafter
estopped from making the same successful arguments in court.
Earlier this month, the government supported this position
in an amicus brief to the Federal Circuit in BTG
v. Amneal. In it's brief, the government
explains that its interpretation leads to the
"counterintuitive result that the district court would not be
able to consider invalidity arguments that the Board found
persuasive."
