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June 08, 2020

Comments

This decision is not nearly so broad as to never allow any IPR cost recoveries for IPRs. [And IPRs are mostly all filed after the patent suit is filed - in response to the suit.] This decision relies on lack of any requisite specific fact findings and support in the record below for this D.C. attorney fee sanctions award. [In particular, if the patent assertion was Objectively unreasonable.] Unlikely overlooked in other cases.

"It does not appear that we have yet had occasion to consider to what extent section 285 applies to IPR appeals. Almirall argues that the Federal Circuit is a “court” authorized by section 285 to award fees in exceptional cases and that we have authority to award fees that were incurred during the entirety of this matter, including for work at the Board before Amneal’s appeal was filed. We disagree. Whether or not this court can award fees for work on appeal from a decision in an IPR, section 285 does not authorize this court to award fees for work that was done before the agency on appeal from an IPR."

Mr. Morgan,

Do you have a survey result indicating your point as to percentage of IPRs that follow/are in a response to Article III suits?

What is the basis for the supposition of "unlikely overlooked?" Gut feeling?

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