"In the coming months, the United States Supreme Court will decide whether the US Patent and Trademark Office is entitled to collect attorney fees when an applicant challenges the USPTO's denial of a patent by initiating litigation in a district court. Under the current practice, the USPTO will seek compensation for its fees incurred in defending its decision in the district court under a statute allowing it to recover 'all expenses of the proceedings' – even when its decision is overruled. The Supreme Court heard oral argument last month in the case of Peter v. Nantkwest, which will determine whether that practice is authorized by Congress. Given the statutory language, the importance of the so-called 'American Rule' to the issue of fee shifting, and the public policy benefits of preventing government overreach, the Supreme Court is likely to conclude that the USPTO's attempt to recover attorney fees is impermissible."
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