Search Team

Search by Last Name
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
X
Y
Z

Amneal Pharmaceuticals LLC v. Almirall, LLC

§ 285 Does Not Authorize Fed Cir to Award Fees Incurred During PTAB Proceedings

Amneal Pharmaceuticals LLC v. Almirall, LLC, __ F.3d __, 2020 WL ____ (Fed. Cir. June 4, 2020) (Lourie, DYK, Reyna) (PTAB) (3 of 5 stars)

Fed Cir grants Amneal’s unopposed motion to dismiss its appeal, and denies Almirall’s motion for fees. Amneal had appealed an IPR decision confirming patentability for Almirall’s claims. Almirall listed the challenged patent in the Orange Book as claiming ACZONE (dapsone), Almirall’s medication for treating acne. The opinion describes how Almirall sought fees only for a 37-day period during the case’s pendency before the PTAB. While the Federal Circuit may award fees under § 285, it may not award fees incurred during the period in which the case was before an administrative tribunal, and not before the judiciary. The opinion cites precedent from the Fed Cir’s predecessor court, the Court of Customs and Patent Appeals, including Reddy, 529 F.3d 1347 (C.C.P.A. 1976), and Meitzner, 549 F.2d 775 (C.C.P.A. 1977). Sullivan, 490 U.S. 877 (1989), is not contrary because that case supported an award of fees for administrative proceedings only where a complaint on the matter was pending in a court of law, which would “‘depend[ ] for its resolution upon the outcome of the administrative proceeding.’” Op. at 6 (quoting Sullivan at 97). Therasense, 745 F.3d 513 (Fed. Cir. 2014), is also not contradictory because that case endorsed the Federal Circuit awarding fees only based on judicial proceedings, not administrative ones.

KEYWORDS: INTER PARTES REVIEW; FEE SHIFTING; ADMINISTRATIVE LAW; SECTION 285; EXCEPTIONALITY