Reasonably Could Have Raised & Reasonably Diligent
Prior to last year’s SAS decision, district courts split over whether non-petitioned grounds were embraced by the “reasonably could have raised” aspect of 35 U.S.C. §§ 315(e)(2) and 325(e)(2) estoppel. However, a growing number of district courts post-SAS have construed this phrase to define grounds that a party could have included in its petition, but did not. In doing so, the courts are also making clear that the burden of proving that a ground could have reasonably have been raised, lies with the Patent Owner.