Although it is unclear whether PTAB decisions are given collateral estoppel effect in district court proceedings, PTAB decisions are at least persuasive authority. And as one court observed, "ignoring the PTAB decision entirely smacks of folly." Yet, a third time was not the charm when a defendant argued the same position to the court three times, the third coming after a contradictory PTAB ruling.
The case of Microwave Vision, SA et al v. ESCO Technologies, Inc. et al., 1-14-cv-01153 (GAND September 20, 2016) involves claims directed to over-the-air measurement devices, including multi-probe systems. The relevant claims were written in means-plus-function format, requiring corresponding structure to be disclosed in the specification or else the claims would be found indefinite. At issue was whether the "network of probes" and "support" in the claims are both required to pivot, or if only one of the elements is pivotable. Defendant argued the claims are broad enough to cover both elements pivoting, for which there was no corresponding structure in the specification, and therefore argued the claims were indefinite. Plaintiff disagreed and argued such a construction would not be supported by the specification in any event, as there is no embodiment where both elements pivot. The district court found corresponding structure during Markman, and again during a Motion to Reconsider the Markman order.
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