Prof. Cotter Quoted in Law360 Article on Awards of Attorneys’ Fee

A March 6, 2019 article in Law360 titled Copyright Ruling Could Hinder USPTO’s High Court Fee Case discusses the U.S. Supreme Court’s recent decision to grant certiorari in Iancu v. NantKwest Inc. The issue centers on Patent Act section 145, which allows disappointed patent applicants to demand a trial in U.S. District Court on the issue of whether the U.S. Patent and Trademark Office (USPTO) should have granted them a patent. The Supreme Court will decide whether the last sentence of section 145, which states that “All the expenses of the proceedings shall be paid by the applicant,” authorizes the court to award the USPTO its attorneys’ fees, regardless of whether it wins or loses the case. The article quotes Professor Tom Cotter as stating that, because the Court “took a narrow construction of the word ‘costs’ in the context of the Copyright Act,” in a different case handed down that same day, “it may suggest the court would take an equally narrow view of the term ‘expenses’ here.” Cotter also noted that because the American Rule, under which each party bears its own attorneys’ fees, is the general default rule, the Court might “conclude, as the Federal Circuit concluded, that if Congress meant for attorneys’ fees to be recovered, they would have made that more clear.”