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June 26, 2014

Comments

If Judge Sabraw is ever faced with a motion to apply an estoppel on grounds not instituted, he will probably reconsider and change his answer to this question. The statute does not create estoppel for grounds not instituted (whether requested in the petition or not), and the proper framework for determining scope of estoppel under the "reasonably could have been raised" standard should be the common law principles of issue preclusion (for example as in the Restatement of Judgments 2nd.) An un-appealable PTAB determination to not institue a review would never pass muster for issue preclusion.

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