On December 11, 2019, the Supreme Court issued its decision in Peter v. NantKwest Inc. upholding the American Rule’s presumption against shifting attorney’s fees. Under Section 145 of the Patent Act, applicants “dissat­isfied with the decision of the Patent Trial and Appeal Board” are afforded the opportunity to file a civil action in the United States District Court for the Eastern District of Virginia. The statute specifies that “[a]ll the expenses of the proceedings shall be paid by the applicant.” The question presented in the case is whether such “expenses” includes the salaries of attorney and paralegal employees of the United States Patent and Trademark Of­fice (“USPTO”). The Supreme Court, in a unanimous opinion, affirmed the en banc majority opinion of the United States Court of Appeals for the Federal Circuit and held that it does not include the attorney’s and paralegal fees. The discussion of this decision will focus on the Court’s analysis and its implications.

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-- Robert J. Rando, Founder and Lead Counsel, The Rando Law Firm P.C.