Reliance on Prior Art Computer During Inter Partes Reexam Did Not Estop Defendant from Relying on the Same Prior Art for Its Invalidity Defense

Defendants were not estopped under 35 U.S.C. § 315(c) from arguing invalidity based on a prior art computer even though the computer "was actually raised as potential prior art during the [inter partes] reexamination proceeding" because "in reexamination proceedings, the PTO considers only 'patents or printed publications' " and a physical computer is neither.

Acco Brands, Inc. v. PC Guardian Anti-Theft Products, Inc., 3-04-cv-03526 (CAND December 4, 2008, Order)