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In 2013, the Patent and Trademark Office (PTO) adopted a new policy under which any party commencing a de novo proceeding challenging a PTO decision would be responsible to pay a pro rata share of the salaries of the government attorneys working on the matter, based on a new interpretation of language that has appeared in the Patent Act for 175 years — and more recently was included in the Lanham Act as well. That language requires the plaintiff seeking de novo review to pay “all expenses of the proceedings,” win or lose. However, the term expenses had always in practice been construed (until recently) to mean only lesser costs — not attorneys’ fees. On Dec. 11, 2019, the Supreme Court rejected the PTO’s new interpretation of the Patent Act in Peter v. NantKwest, Case No. 18-801, slip op., which held that the American Rule, a centuries-old principle under which each party bears its own attorneys’ fees, does apply to this statute. The Court further concluded that the actual language of the statute itself simply does not support shifting fees.
By Mary A. Donovan
In a recent trademark cancellation case that has drawn “human interest” attention in the news, the plaintiff appealed an adverse decision to the Federal Circuit. The plaintiff was not “kidding” when he expressed his opinion that the registered mark, described as “goats on a roof of grass,” is demeaning to goats which, in turn, is offensive to him.
By Shaleen J. Patel
Do Not Pass Go? U.S. Supreme Court to Review Federal Circuit’s Finding of Justiciability
By Leslie Kushner
This article discusses the jurisprudence applied to determining patent eligibility of claims for diagnostic methods, and the expectation for changes in analysis of patent eligibility under §101 in the near future.
By Matthew Calcagno
Documents are the lifeblood of any law firm. The documents that a firm produces are its greatest asset, especially the intellectual property — trade secrets, patent information, etc. — contained in those documents, yet firms historically have not made sufficient efforts to safeguard those documents from both internal and external threats.