To Fee or Not to Fee: Supreme Court to Consider Attorneys’ Fees in Patent Disputes
The R Street Institute (R Street), the sole amicus supporting the PTO, does not agree that NantKwest raises court-access issues. Instead, R Street contends that an applicant can obtain the purported benefits of a section 145 action through ordinary prosecution at the PTO. Moreover, R Street argues that section 145 actions are most commonly used by well-financed applicants, particularly pharmaceutical companies, who would not be significantly affected by paying the PTO’s attorneys’ fees. Under that view, allowing the PTO to recover its fees would not affect the ability for poorer litigants to access the courts.
