Altair illustrates how to win by losing

The Altair case illustrates how to evade judicial estoppel.
As the CAFC noted:

With respect to judicial estoppel, Altair argues that
the issue of the nature of the accused product was never
contested, and it never prevailed on the definition of LED.
Under these circumstances, it asserts that it cannot be
estopped from changing its characterization of the ac-
cused product. We agree. In New Hampshire v. Maine,
532 U.S. 742, 750–51 (2001), the Supreme Court de-
scribed three factors used to determine whether judicial
estoppel should apply:

First, a party's later position must be clearly in-
consistent with its earlier position. Second, courts
regularly inquire whether the party has succeeded
in persuading a court to accept that party's earlier
position, so that judicial acceptance of an inconsis-
tent position in a later proceeding would create
the perception that either the first or the second
court was misled. . . . A third consideration is
whether the party seeking to assert an inconsis-
tent position would derive an unfair advantage or
impose an unfair detriment on the opposing party
if not estopped.

Id. (internal citations and quotations omitted). The Court
explained that judicial estoppel “prevents a party from
prevailing in one phase of a case on an argument and
then relying on a contradictory argument to prevail in
another phase.” Id. at 749 (quoting Pegram v. Herdrich,
530 U.S. 211, 227 n.8 (2000)). Here, Altair did not prevail
in any phase of the case. In fact, Altair lost its argument
on claim construction.

Bottom line: Altair gets to try again.

***Also

On claim construction: Claim con-
struction is an issue of law that we review de novo. Key
Pharm. v. Hercon Labs. Corp., 161 F.3d 709, 713 (Fed.
Cir. 1998).

On distinguishing prior art: The fact that the Schmitt patent could also
have been distinguished on some other ground (i.e., that it
does not use LEDs) is irrelevant. See, e.g., Andersen Corp
v. Fiber Composites, LLC, 474 F.3d 1361, 1374 (Fed. Cir.
2007) (“[A]n applicant's argument that a prior art refer-
ence is distinguishable on a particular ground can serve
as a disclaimer of claim scope even if the applicant distin-
guishes the reference on other grounds as well.”).

On the significance of an applicant's interpretation:
While the examiner’s interpretation can be pertinent,
the applicant’s own interpretation has far more signifi-
cance. See, e.g., Springs Window Fashions LP v. Novo
Indus., LP, 323 F.3d 989, 995 (Fed. Cir. 2003) (focusing on
applicant’s statements distinguishing prior art during
prosecution despite the fact that examiner may not have
relied on those statements and, instead, had a different
reason for allowance); Spectrum Int'l, Inc. v. Sterilite
Corp., 164 F.3d 1372, 1378–79 (Fed. Cir. 1998) (noting
that “explicit arguments made [by the applicant] during
prosecution” are significant and that “by distinguishing
the claimed invention over the prior art, an applicant is
indicating what the claims do not cover”).

On changing declaration content:
Although Ivey’s affidavit differs from his prior
declaration that the LEDs on the accused product “were a
little over one inch apart,” the change in position does not
preclude finding a material issue of fact. See Checkpoint
Sys., Inc. v. All Tag Sec. S.A., 412 F.3d 1331, 1338 (Fed.
Cir. 2005) (finding issue of material fact where content of
witness declarations differed from prior declarations
given to Patent and Trademark Office).

On the need for a cross-appeal:
LEDdynamics argues on appeal that claim 3 of
the ’761 patent should be invalidated for indefiniteness or
lack of written description. Its invalidity counterclaims
were dismissed by the district court without prejudice.
LEDdynamics did not file a cross-appeal. Even if the
dismissal without prejudice were not a bar to its invalid-
ity claims on appeal, LEDdynamics cannot seek invalidity
of the ’761 patent in the absence of a cross-appeal. See
Typeright Keyboard Corp. v. Microsoft Corp., 374 F.3d
1151, 1157 n.4 (Fed. Cir. 2004) (“[W]here the appellee
urges invalidity as a new ground on which to support a
judgment of non-infringement . . . a cross-appeal is neces-
sary . . . .”).