Federal Circuit: "All the Expenses" Does Not Mean "Attorneys’ Fees", PTAB Litigation Blog

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Last Friday, the Federal Circuit issued its en banc opinion in NantKwest, Inc. v. Iancu, No. 16-1794 (Fed. Cir. July 27, 2018). The Court held, by a 7-4 vote (Judge Chen, the former PTO Solicitor, was recused), that if the PTAB rejects a patent application, the applicant could seek district court review (instead of the more standard direct Federal Circuit appeal) without having to pay for the time the PTO’s lawyers spent on the case. This was an important ruling of statutory interpretation that removes a financial disincentive, particularly onerous for smaller entities, for seeking district-court review.

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