The Federal Circuit Will Rule on the Government’s “Heads I Win, Tails You Lose” Position on Recovering Attorney’s Fees As “Expenses”

According to the United States Patent and Trademark Office (“PTO”), an applicant for a patent that tries to challenge the PTO’s denial of a patent by filing a civil action in federal district court should lose even if it wins, in that the PTO contends that the applicant has to pay the PTO’s attorneys’ fees regardless of the civil case’s outcome.  The statutory language on which the PTO relies refers to payment of the PTO’s “expenses,” but does that term encompass attorneys’ fees?  The Federal Circuit of Appeals, sitting en banc, will now determine the issue, in a case called Nantkwest v. Matal. In Nantkwest, the Plaintiff was denied registration of a patent by the PTO.  Rather than appealing the denial of the administrative ruling to the Court of Appeals for the Federal Circuit, Nantkwest opted for the alternative allowed by 35 U.S.C. Section 145, which is to file a civil action against the PTO in…

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