The Federal Circuit as of late issued a sentiment insisting the choice of the Patent Preliminary and Bid Load up (“Load up”) refuting a VirnetX patent tested by Apple. The Court held that VirnetX was correspondingly estopped from relitigating whether an earlier workmanship reference was a printed distribution. The Court additionally declined to address VirnetX’s contention that bury partes audit (“IPR”) systems couldn’t be retroactively connected to licenses recorded before establishment of the America Invents Act (“AIA”) on the grounds that VirnetX neglected to protect that issue for bid. See VirnetX Inc. v. Apple Inc., No. 17-2490, 2018 U.S. Dist. LEXIS 6212 (Fed Cir. Dec. 10, 2018) (Before Newman, O’Malley, and Chen, Circuit Judges) (Opinion for the court, O’Malley, Circuit Judge).

In 2015, Apple documented two IPR petitions testing the conspicuousness of VirnetX’s ‘696 patent to some extent over the earlier workmanship reference RFC 2401. Amid the IPR, VirnetX contended that RFC 2401 was not a printed production under §102(b). The Board dismissed this contention and negated the patent as self-evident, and VirnetX requested. While the present intrigue was pending, the Federal Circuit summarily avowed the Board’s seven other last composed choices finding the ‘696 patent as evident over RFC 2401 in mix with different references. See VirnetX Inc. v. Apple, Inc., No. 17-1131, 715 F. App’x 1024 (Fed Cir. Mar. 16, 2018) (“VirnetX I”). Apple informed the Court of the pertinence of the VirnetX I choice for the present intrigue and contended that, in light of VirtneX I, VirnetX was correspondingly estopped from relitigating the printed distribution status of RFC 2401.

“A party is collaterally estopped from relitigating an issue if: (1) a prior action presents an identical issue; (2) the prior action actually litigated and adjudged that issue; (3) the judgment in that prior action necessarily required determination of the identical issue; and (4) the prior action featured full representation of the estopped party.” The main questioned issue in the present intrigue was whether RFC 2401’s printed production status was important or basic to the judgment in VirnetX I. Each ground of unpatentability offered by VirnetX in VirnetX I depended on RFC 2401. By avowing the Board’s choices, the Court in VirnetX I fundamentally discovered that RFC 2401 was a printed distribution. VirnetX was in this way ceased from relitigating this issue.