I mention this because it seems like a case where the standard of review might make a difference. As I noted above, in my view the PTAB obviousness decision here is quite weak in the way that it combines disparate references and identifies the problem to be solved. But, the Federal Circuit majority simply concluded that the patentee “had its day in court” and now is bound by the outcome. Standard issue preclusion rules prohibits this sort of application. But, decisions on those low standards do not tell us whether the issue would be decided the same way under a higher standard of clear and convincing evidence. One key example: the PTAB decided obviousness based upon the low standard of preponderance of the evidence and the IPR Appeal was decided on an even lower substantial evidence standard. The basic concern is that the opinion fails to consider standard limitations on the application of collateral estoppel, such as differing standards of review. Judge Chen’s XY decision has numerous problems. In XY, the Federal Circuit particularly concluded that collateral estoppel applies to immediately bar a patent infringement lawsuit once the PTAB finds the claims unpatentable and that determination is affirmed on appeal. One theory for immediately applying the PTAB judgment is the doctrine of collateral estoppel (aka “issue preclusion”). Whether, as a matter of federal patent law, a determination of unpatentability by the Patent Trial and Appeal Board in an inter partes review proceeding, affirmed by the Federal Circuit, has a collateral estoppel effect on patent validity in a patent infringement lawsuit in federal district court.Īlthough the Second Restatement of Judgments is not “law” as such, the Supreme Court (and other courts) have repeatedly concluded that its statements do reflect the law. Jump Rope Systems’ case is now pending before the US Supreme Court on petition for writ of cetiorari and it argues that the Federal Circuit’s approach is in direct conflict with our law of issue preclusion. ![]() The IPR Certificate eventually issued in August 2022 stating that the claims have been cancelled, but that time the district and appellate courts had already been treating them as cancelled for months. Jump Rope appealed, but made clear to the Federal Circuit that the purpose of its appeal was to change the law and moved for summary affirmance of the district court’s judgment. Still, it is precedent and the district court followed that precedent–dismissing the case and siding with the accused infringer. As I write below, the Federal Circuit’s approach has some doctrinal holes. “That affirmance … has an immediate issue-preclusive effect on any pending or co-pending actions involving the patent.” XY, LLC v. The Federal Circuit precedent is clear that all enforcement litigation should end as soon as the PTAB finds a claim unpatentable in an IPR/PRG and the determination is affirmed on appeal. Still, the Federal Circuit affirmed without opinion. The PTAB decision here is fairly questionable as applying hindsight bias in justifying the combination of prior references. The PTAB granted the petitions and eventually concluded that the claims were obvious compared against the prior art. Coulter turned around and petitioned for inter partes review (IPR). ![]() After failed licensing discussions, her company Jump Rope Systems eventually sued Coulter Ventures (owners of Rogue Fitness) in 2018 for patent infringement. Financing an infringement lawsuit is a bit tricky, especially for a total-startup (micro entity) in a fairly small market. ![]() There has been massive infringement since her patents issued 10-12 years ago. Molly Metz is a competitive jump-roper ( 5-time world champ) and also an inventor of an innovative jump rope handle that allows super speed jumping loved by both competitors and cross-fit freaks.
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