Change in Primary Reference Does Not Alter Scope of IPR Estoppel as to Non-Instituted Prior Art Combinations

The court denied in part plaintiff's motion in limine to exclude certain obviousness theories due to IPR estoppel. "⁠[F]or the combinations that Defendant tried to raise in the IPR, but which the PTAB did not institute, Defendant may pursue the combinations at trial. For those combinations 'A in view of B' on which the PTAB did not institute, I would regard that as reasonably raising 'B in view of A' also, and thus I reject Plaintiff's assertions to the contrary. On this point, Plaintiff's motion is denied."

Nox Medical ehf v. Natus Neurology Inc., 1-15-cv-00709 (DED April 12, 2018, Order) (Andrews, USDJ)