Yesterday, Chief Judge Stark addressed whether "judicial estoppel" prevents a defendant from taking one position in an uninstituted IPR petition and asserting a contradictory position during claim construction in the district court:
[Plaintiff] Sequoia contends that [defendant] Red Hat is judicially estopped from arguing for a narrower construction than it proposed during the IPR . . . . Judicial estoppel is only appropriate when: (1) the party to be estopped is asserting a position that is irreconcilably inconsistent with one she previously asserted; (2) the party changed her position in bad faith, i.e., with an intent to play fast and loose with the court, and (3) the use of judicial estoppel is tailored to address the affront to the …
