Document Type

Amicus Brief

Publication Date


Case Name

Peter v. NantKwest, Inc., 140 S. Ct. 365 (2019)


It is a common but misleading premise of cases such as this one that the disappointed patent applicant has two options for judicial review: a 35 U.S.C. § 145 district court action and an appeal under 35 U.S.C. § 141. The applicant also has a non-judicial option: administrative remedies within the U.S. Patent and Trademark Office.

These administrative remedies add an important dimension to this case. The Court of Appeals adopted what it conceded was an atextual construction of § 145 expense recovery provision in order to ensure that § 145 actions were not cost-prohibitive to “small businesses and individual inventors.” But in light of the robust, lower-cost administrative remedies that offer largely the same benefits as § 145, the Federal Circuit’s rationale falls away, leaving no reason to construe § 145 contrary to its plain language.