In Nantkwest, Inc. v. Iancu, No. 2016-1794 (Fed. Cir. July 27, 2018), the CAFC, sitting en banc (excl. Chen, C.J.), affirmed the district court's decision that the USPTO cannot recover attorneys' fees resulting from an applicant' challenge of the USPTO's patent application rejection under 35 USC 145. The CAFC held that, even though Section 145 requires that "all expenses" of a challenge under this Section be paid by the applicant, "expenses" does not include attorneys' fees. This appeal arose from litigation in the Eastern District of Virginia challenging the PTAB's rejection of NantKwest's patent application directed to a method for treating cancer using natural killer cells.
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