Adding New Blood into the Estoppel Mix
IPR estoppel under 35 U.S.C. § 315(e)(2) provides that “the petitioner in an inter partes review of a claim in a patent . . . that results in a final written decision . . . may not assert . . . in a civil action . . . that the claim is invalid on any ground that the petitioner raised or reasonably could have raised during that inter partes review.” (emphasis added). As pointed out previously, a growing number of district courts have construed the phrase the “reasonably could have raised” aspect of 35 U.S.C. §§ 315(e)(2) to define grounds that a party could have included in its petition, but did not.
Assuming a failed petitioner can locate a piece of prior art that it could not have raised earlier (and make the appropriate showing to avoid estoppel) are combinations with failed art of the IPR precluded?