Estopping a Winning Argument?
One of the stranger developments of recent months has been the interpretation of PTAB estoppel (315(e)(2)) to foreclose a petitioner from pursuing arguments in a district court that were successful at the PTAB. That is, a petitioner that has successfully defeated claims at the PTAB, and has received a Final Written Decision (FWD) explaining the same, is thereafter estopped from making the same successful arguments in court.
Earlier this month, the government supported this position in an amicus brief to the Federal Circuit in BTG v. Amneal. In it’s brief, the government explains that its interpretation leads to the “counterintuitive result that the district court would not be able to consider invalidity arguments that the Board found persuasive.”
Aside from interpreting the statute to be “counterintuitive” in the first instance, which is canon of sorts in statutory construction, it also requires one to construe estoppel as somehow guarding against consistency.