The Federal Circuit Rules that “Expenses” in Patent Statute Does Not Mean Attorneys Fees; Creates Circuit Split

The United State Patent and Trademark Office (“PTO”) has aggressively litigated its position that anyone who challenges the PTO’s denial of a patent application in federal district court should lose even if he wins:  that is, the PTO contends that the applicant has to pay the PTO’s attorneys fees regardless of the outcome.  The statutory language on which the PTO relies requires payment of the PTO’s “expenses”; the PTO argues “expenses” includes attorneys fees, in the form of pro rata reimbursement of the salaries of its staff attorneys.  On July 27, 2018, the Federal Circuit Court of Appeals, sitting en banc, in Nantkwest, Inc. v. Iancu, decisively rejected that argument, but in doing so created a circuit split that may require the Supreme Court to address the issue. In Nantkwest, the Plaintiff was denied registration of a patent by the PTO.  Rather than appealing the denial of the administrative ruling…

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