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A number of commentators within the intellectual property field have provided views and insights regarding the use of an inter partes review (IPR) as an alternative to district court patent litigation. However, quite recently several of those same commentators have begun to express concerns regarding potential limitations of that procedure (e.g., inability to address damages, potential exclusions to the “estoppel effect”, continuation practice concerns, and jurisdictional considerations when obtaining a stay of litigation, among others). In a previous column, we expressed our view that the current IPR procedure is still in its infancy and that further modification to it, at this time, would appear to be premature. However, the real-world concerns with patent litigation continue. To address those concerns, an additional approach beyond strictly IPR and litigation could be considered.

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