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IP Litigator Examines Federal Circuit Ruling on Legal Fees and Statutory Interpretation in Bloomberg Law and Law360

Practices: Intellectual Property, Intellectual Property Litigation, Patent Strategy, Patent Trial & Appeal Board (PTAB) Proceedings

Capital Insights.

IP litigation partner Scott McKeown (Washington, D.C.) examined a Federal Circuit en banc decision in articles published between July 27 and 30 by Bloomberg Law and Law360.

In NantKwest, the full Federal Circuit rejected the U.S. Patent and Trademark Office’s argument that applicants who appeal to a district court must pay the agency's legal bills regardless of whether it wins or loses, saying the U.S. Congress did not make explicit that the PTO is entitled to those fees. The decision contradicts a 2015 ruling by the U.S. Court of Appeals for the Fourth Circuit, and could lead to a U.S. Supreme Court argument.

Mr. McKeown explains that district court challenges to ex parte prosecution proceedings of the USPTO are used in very limited circumstances.

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