Judge Fallon issued an order yesterday recognizing the split in the district court on how the judges handle IPR estoppel—specifically the question of whether IPR estoppel may apply to prior art products that are cumulative of patents or publications that could have been raised in the IPR:
ORAL ORDER . . . IT IS ORDERED that Plaintiff's motion to strike Defendant's amended invalidity contentions based on IPR estoppel is DENIED without prejudice. The parties dispute whether IPR estoppel should apply to Defendant's invalidity theories based on prior art systems, products, and/or knowledge. Under 35 U.S.C. § 315(e)(2), Defendant is barred from asserting an invalidity defense based on "any ground that [Defendant] raised or reasonably could …
