Federal Circuit Nixes Expert Witness Fees

The United States federal court system is a hierarchy, at the top of which sits the Supreme Court. However, just below the Supreme Court is another incredibly important court: the Federal Circuit.

Like its numbered brethren (say, for example, the famously liberal Ninth Circuit, based out of California), the Federal Circuit is an appeals court, which handles cases originating in the many federal district courts across the country.

The Federal Circuit is the most prestigious of the circuit courts, as it often decides cases of national importance, since the Supreme Court has a limited docket. Many Federal Circuit judges go on to become Supreme Court justices. In fact, Attorney General Merrick Garland, President Obama’s scuttled nominee for the Supreme Court to replace the late Justice Antonin Scalia, was chief of the Federal Circuit.

Well, now the uber-powerful Federal Circuit has ruled on an issue near and dear to our hearts here at the Orion Expert Network (OEN): expert witness fees. In the case at issue, Hyatt v. Hirshfeld, Mr. Hyatt had applied for and was denied several patents by the U.S. Patent and Trademark Office (USPTO), and sued. The USPTO had to hire expert witnesses for the case and won on appeal.

USPTO in turn sued Mr. Hyatt to recover “[a]ll the expenses of the proceedings” under 35 U.S.C. § 145. This included its expert witness fees. The circuit based its ruling on the recent Supreme Court decision, Peter v. NantKwest, Inc., 140 S. Ct. 365 (2019), which summarized the longstanding presumption against fee-shifting without “explicit and specific”” legislative intent to the contrary. The circuit noted that this was a high bar to pass, and that expert witness fees don’t make the cut.

What does this mean for your clients? Anticipate that any expert witness fees incurred while pursuing your case will not be reimbursable, even if you are successful at trial. Inversely, you won’t be expected to pay your opponent’s expert witness fees if they prevail. There may be some leeway depending on the specific facts of your case, but the safe assumption to make is that no, your expert witnesses will not be paid for.

That’s why it behooves you to call OEN today. We will get you the expert witness you need at a rate that you and your client can afford. Let’s do this together.

Call Orion Expert Network directly at (617) 528–0055 or email us at info@orionexpertnetwork.com to get started on your expert witness search today.