BTG Int’l: Can an Accused Infringer’s Victory In an Inter Partes Review Proceeding Lead to Its Defeat in Patent Infringement Litigation?

Use of the inter partes review (IPR) process as a means to challenge the validity of a patent could be dealt a blow by a patent case currently on appeal to the Federal Circuit, BTG International Ltd. v. Amneal Pharmaceuticals LLC, No. 15-cv-5909, 2018 U.S. Dist. LEXIS 183854 (D.N.J. Oct. 25, 2018), in which Appellants are asking the Court to conclude that, under a literal reading of the relevant statutes, an accused infringer is estopped from using an argument for invalidity of a patent because the argument proved to be successful in an IPR.  The defendants in BTG say this result would be absurd, and even though the United States Patent and Trademark Office (“PTO”) urges adoption of the literal interpretation of the statute, it concedes that it is “counterintuitive.” The America Invents Act of 2011 included provisions allowing any person to petition the PTO for an inter partes review of the claims of an issued patent, on the ground that the prior…

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