Amneal Pharm v. Almirall was decided on June 4, 2020, on appeal from the PTAB. After Amneal filed a petition for an IPR challenging Almirall’s patent, Almirall sued Amneal in the district court on a different patent. The parties engaged in settlement discussions, in which Almirall offered to enter into a covenant-not-to-sue on the [patent challenged in the IPR] contingent on dismissal of this IPR.” With the parties unable to reach a settlement, the Board issued a final written decision upholding the claims of the challenged patent. Amneal moved to voluntarily dismiss the appeal. Almirall moved for fees because “Amneal litigated this matter in an unreasonable manner by continuing to litigate the IPR after the covenant-not-to-sue was offered.” Almirall sought fees and costs incurred during the window of time from “the date settlement negotiations were terminated, to the date of trial in the underlying IPR.”
The Federal Circuit rejected Almirall’s request for attorney fees under Section 285.
Section 285 of the Patent Act, provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” The Federal Circuit has “long recognized this court’s ability to award attorney fees under section 285 for work done in district court patent infringement actions.” In that context, “a case should be viewed more as an inclusive whole rather than as a piecemeal process when analyzing fee-shifting under § 285.”
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“Appeals from the Board are a different matter.” The Court of Customs and Patent Appeals, a predecessor court to the Federal Circuit, “on several occasions refused to read section 285 as pertaining to … administrative proceedings” appealable from the Patent Office to the CCPA. Moreover, “the plain meaning of section 285’s reference to ‘[t]he court’ speaks only to awarding fees that were incurred during, in close relation to, or as a direct result of, judicial proceedings.” The Federal Circuit cannot award “fees incurred for work in Patent Office proceedings before this court has ever asserted its jurisdiction.”
“It is true that … that fees could be awarded for administrative proceedings that are intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees.” But that “narrow class of qualifying administrative proceedings” refers to cases “where a suit has been brought in a court”, and where the formal complaint at the court “remains pending and depends for its resolution upon the outcome of the administrative proceedings.” Even if the Federal Circuit could award fees in appeals from the Board in an IPR for work in the appellate proceedings, “Almirall is impermissibly seeking fees that were incurred for work at the Patent Office before this case was commenced.”