Federal Circuit to hear USPTO fees case en banc
The US Court of Appeals for the Federal Circuit will re-hear a case en banc relating to a rule that applicants dissatisfied with a decision by the Patent Trial and Appeal Board (PTAB) must pay the government’s fees.
Section 145, 35 USC states that these parties must cover the US Patent and Trademark Office’s (USPTO) costs, regardless of the outcome in the subsequent appeal.
In the judgment, issued yesterday, August 31, the court said that after a poll request, “a majority of the judges who are in regular active service voted for sua sponte en banc consideration”.
The case stems from a patent application filed by Hans Klingemann of biotechnology company NantKwest with the USPTO in 2001, relating to a method of treating cancer by administering natural killer cells.
This was rejected on the grounds of obviousness, which was affirmed by the PTAB, before an appeal was heard at the US District Court for the Eastern District of Virginia in May this year.
After prevailing, the USPTO director at the time, Joseph Matal, successfully recovered expert fees, but not attorneys’ fees, at the district court.
The Federal Circuit reversed the district court’s ruling on June 23 and “remanded the case for it to enter an additional award of $78,592.50 in favour of the director” to cover the attorneys’ fees.
However, the court yesterday delivered the verdict that the decision should be vacated and that the case will be heard en banc on a date “to be announced later”.
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