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ABA says government should pay its legal tab in patent cases

The American Bar Association filed an amicus brief July 22 with the U.S. Supreme Court, supporting an appeals court ruling that effectively bars government patent lawyers from being reimbursed for legal fees.

Under patent law, an applicant dissatisfied with the decision of the U.S. Patent Trial and Appeal Board can seek review by filing an action against the U.S. Patent and Trademark Office (USPTO) in U.S. District Court. The law stipulates that “all expenses of the proceedings shall be paid by the applicant.” The patent office has re-interpreted “all expenses” to include payments for its lawyers, but that re-interpretation was found to be invalid last year by the U.S. Court of Appeals for the Federal Circuit in Washington, D.C.

The government is appealing, and oral argument is set for Oct. 7. At issue is a lower court ruling granting the patent office $33,103.89 in expert fees but no attorney fees, which would have been nearly $80,000. The ABA’s amicus brief supports the position of a company that had filed for a cancer treatment patent application and contends the patent office’s attempt to recover attorneys’ fees is unjustified.

The ABA brief said that, without congressional authorization, the Supreme Court should not permit the USPTO “to set the price of admission so high that many appellants will be forced to choose not to exercise their rights.”

“The ABA submits that imposing governmental attorneys’ fees on patent applicants who choose civil actions under (the law) will hamper equal access to justice and chill the assertion of meritorious claims,” the ABA brief said, citing ABA policy that supports that position. The USPTO, the brief continued, “now urges a radical, novel departure” from a longstanding interpretation requiring the government to cover its legal fees regardless of which side prevails in a case.

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