Aly Quoted on Patent Law Issues in 2022

The report addressed two issues ripe for further appellate attention at the Federal Circuit: written description and the scope of inter partes review (IPR) estoppel.

Imron said that written description, a defense under Section 112 of the Patent Act, was an afterthought a decade ago, but is “starting to get traction” as courts cite them more often. More appellate court opinions on the issue will provide further clarity on the scope of the written description defense. In the meantime, since each case is fact-specific, “it’s hard to get a bright-line rule,” he said.

The second issue – IPR estoppel – is also in need of clarity in terms of the scope of estoppel, which has varied. Imron said that the potential for estoppel problems could lead accused infringers to decide against filing IPRs, and that without more court decisions, it’s hard to predict what the range of estoppel is going to be.

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