Analysis

With Sharp Split, USPTO Fee Rule Could Head To High Court

Law360 (July 30, 2018, 8:42 PM EDT) -- A ruling by the Federal Circuit last week created a sharp circuit split over the U.S. Patent and Trademark Office's controversial policy on attorneys' fees, raising the distinct possibility of an endgame at the U.S. Supreme Court.

The en banc appeals court ruled Friday that the policy — which demands that patent and trademark applicants who appeal rejections to a district court must pay the agency's legal bills regardless of who wins — violated the so-called American Rule against such awards.

The ruling was a self-conscious break from an earlier decision by the Fourth Circuit, which greenlighted USPTO’s policy back in...

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