Nantkwest Amici Urge SCOTUS Not to Shift Attorney’s Fees in Section 145 Appeals

This March, the U.S. Supreme Court granted a petition for writ of certiorarito take up Peter v. Nantkwest Inc., on appeal from the Court of Appeals for the Federal Circuit. The case will ask the nation’s highest court to determine whether the phrase “[a]ll expenses of the proceeding” found in 35 U.S.C. § 145, which governs appeals to district court of U.S. Patent and Trademark Office decisions to deny the issue of a patent grant, encompasses personnel expenses incurred by the USPTO, including attorneys’ fees, when its employees defend the agency against Section 145 litigation. On July 22, a series of intellectual property and law associations filed amicusbriefs in the case by and large supporting the position of Nantkwest. This includes the American Bar Association, which argued that the USPTO’s interpretation of the statute would “hamper the equal access to justice and chill the assertion of meritorious claims.” Other Nantkwest amici argued that the government has had the statutory authority to collect ‘expenses of the proceeding’ in patent cases since 1839 but for the 174 years prior to the case against Nantkwest, the USPTO has declined to seek attorney’s fees.

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