So holds the Federal Circuit in its June 4, 2020 Amneal v. Almirall decision (available here). In the case, the Federal Circuit denied Almirall’s request for fees incurred for work on an IPR filed against an Almirall patent by Amneal. The Federal Circuit found that Section 285 of the Patent Act does not authorize an award of fees for work done before the PTAB on appeal from an IPR. “[T]he 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 appeared to leave the door open to an attorney’s fees award where a patent office proceeding was initiated after the filing of a civil action, the proceedings “substituted for the district court litigation on all issues,” and the fees were awarded in the district court proceeding. See PPG Indus., Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1569 (Fed. Cir. 1988).