By Mark Engstrom, J.D.
In light of the Federal Circuit’s sua sponte decision to reconsider a June 23 panel decision in NantKwest, Inc. v. Matal, the appellate court vacated the panel decision and reinstated the original appeal. In reversing the a district court’s denial of attorney fees to the PTO, the panel had found that the PTO Director was entitled to fees—after prevailing on NantKwest’s challenge to a PTAB ruling—because 35 U.S.C. §145 required an applicant to pay "[a]ll the expenses of the proceedings," and that provision included the pro-rata share of attorney fees that were incurred by the PTO while defending the applicant’s appeal, according to the panel. In the order for a sua sponte rehearing, the court asked the parties to file briefs that addressed a single issue: whether the panel had correctly determined that the "[a]ll the expenses of the proceedings" provision authorized the panel’s award of attorney fees to the PTO. Amici briefs could be filed without consent or leave of court, but the briefs had to otherwise comply with Rule 29 of the Federal Rules of Appellate Procedure and Federal Circuit Rule 29 (NantKwest, Inc. v. Matal, August 31, 2017, per curiam).
The case is No. 2016-1794.
Attorneys: Morgan Chu (Irell & Manella LLP) for NantKwest, Inc. Jaynie Randall Lilley, U.S. Department of Justice, for Joseph Matal.
Companies: NantKwest, Inc.
MainStory: TopStory Patent FedCirNews
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