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Case Law Summaries

U.S. Supreme Court – Fee Shifting Under Patent Act

U.S. Supreme CourtPeter v. Nantkwest, Inc., No. 18-801, decided December 11, 2019. The U.S. Supreme Court held that the U.S. Patent and Trademark Office cannot recover attorney’s fees in a civil action under Sec. 145 of the Patent Act. Sec. 145 permits dissatisfied patent applicants to file a civil action and requires the applicant to pay all expenses of the proceeding. The Court stated that contrary to the Government’s argument the presumption against fee shifting applies to statutes like Sec. 145 which do not award fees only to the prevailing party. And here the reference to expenses does not invoke attorney’s fees with the kind of clarity to overcome the presumption.

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