During some research the other day, I came across the below order that Judge Noreika issued last summer.
A defendant had moved in limine to exclude three of the four asserted claims of a patent from trial, after it prevailed on those claims in an IPR. Easy motion, right?
No. Judge Noreika held that, under Federal Circuit precedent, collateral estoppel does not prevent plaintiff from asserting those claims at trial until the decision is final. And the decision is not final until the appeal is exhausted:
Federal Circuit case law suggests that an IPR decision does not have preclusive effect until that decision is either affirmed or the parties waive their appeal …