No Attorney Fees for the USPTO

In February 2020’s Peter v. NantKwest, Inc. ruling, the U.S. Supreme Court affirmed the decision by the Federal Circuit rejecting the USPTO’s request for attorney’s fees as the prevailing party in a civil action brought against it in district court under Section 145 of the Patent Act. The Court relied on its precedents regarding “the bedrock principle known as the ‘American Rule,’” in which each litigant is responsible for its own attorney’s fees regardless of the outcome. Although Section 145 of the Patent Act requires litigants challenging USPTO patent rulings to pay “all expenses”, no matter the outcome, the Court held that “all expenses” does not include “attorney’s fees” unless the statute in question, here Section 145 of the Patent Act, expressly authorizes recoupment of attorney’s fees.