Disputing U.S. Patent and Trademark Office (USPTO) rulings may no longer carry an automatic price tag. A recent decision by the U.S. Court of Appeals for the Federal Circuit raises doubts about the USPTO’s contention that, win or lose, challengers of its decisions must pay the USPTO’s attorney fees.
The Federal Circuit held in late July that the USPTO’s position violates the American Rule, which provides that each party to litigation will bear its own attorney fees absent a contractual prevailing party provision or a statute which specifically and explicitly shifts fees. This tenet of U.S. law is known as the American Rule because it differs from British law, which routinely imposes the victor’s fees upon the losing litigant.
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