Patent Appeals to the District Court: Win or Lose, You Pay Attorneys’ Fees?

Recently, the Federal Circuit Court of Appeals (the federal appellate court that primarily hears appeals in patents cases) heard arguments in NantKwest Inc. v. Matal, No. 16-1794 on the issue of attorneys’ fees (a timely topic) in certain patent cases. Credit: PatentlyO Attorneys’ fees are a necessary and inescapable cost of enforcing one’s rights and, as often is the case, can be astronomical in intellectual property cases. Under what is known as the “American Rule,” parties to a case usually must shoulder their own attorneys’ fees and costs–even if they win. Some statutes alter this general rule, allowing those who win in court (known sometimes as “prevailing parties”) to recover fees and costs. But reimbursement is the exception, rather than the rule. The issue on appeal in NantKwest is unique and far more exceptional than prevailing party statutes. As clearly explained in a recent Law360 article, the…

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