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United States High Court to Decide USPTO’s Entitlement to Recover Attorney Fees

The Supreme Court of the United States has decided to hear the case of Iancu v NantKwest Inc. At issue is whether 35 USC §145 entitles the United States Patent and Trademark Office (the “USPTO”) to recover attorney fees when a patent applicant judicially appeals a decision made by the USPTO’s Patent Trial and Appeal Board to reject a patent application regardless of the outcome of the judicial appeal. On first instance, the USPTO received a favourable judgment from the United States Court of Appeals for the Federal Circuit which held that the USPTO is entitled to recover attorney fees irrespective of whether a patent applicant wins or loses. This judgment was vacated by the Court and a rehearing of the case was ordered. When the case was reheard, a split Federal Circuit 11-member panel reversed the Court’s earlier holding finding that recovery of expenses under 35 USC §145 does not include recovery of attorney fees.

The United States Court of Appeals for the Federal Circuit’s vacated first decision can be found here. The Court’s decision following the rehearing of the case can be found here. The Court’s order to rehear the case can be found here.

Read more here.

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