  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 NANTKWEST, INC.,
                  Plaintiff-Appellee

                           v.

JOSEPH MATAL, PERFORMING THE FUNCTIONS
 AND DUTIES OF THE UNDER SECRETARY OF
 COMMERCE FOR INTELLECTUAL PROPERTY
AND DIRECTOR, U.S. PATENT AND TRADEMARK
                 OFFICE,
            Defendant-Appellant
           ______________________

                      2016-1794
                ______________________

   Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:13-cv-01566-GBL-
TCB, Judge Gerald Bruce Lee.
                 ______________________

       SUA SPONTE REHEARING EN BANC
             ______________________

   Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, HUGHES,
            and STOLL, Circuit Judges. *
PER CURIAM.


   *   Circuit Judge Chen did not participate.
2                                NANTKWEST, INC. V. MATAL



                        ORDER
    This case was argued before a panel of three judges on
February 9, 2017. A sua sponte request for a poll on
whether to reconsider this case was made. A poll was
conducted and a majority of the judges who are in regular
active service voted for sua sponte en banc consideration.
    Accordingly,
    IT IS ORDERED THAT:
   (1) The panel opinion of June 23, 2017 is vacated,
and the appeal is reinstated.
    (2) This case will be heard en banc sua sponte under
28 U.S.C. § 46 and Federal Rule of Appellate Proce-
dure 35(a). The court en banc shall consist of all circuit
judges in regular active service who are not recused or
disqualified.
    (3) The parties are requested to file new briefs. The
briefs should address the following issue:
    Did the panel in NantKwest, Inc. v. Matal,
    860 F.3d 1352 (Fed. Cir. 2017) correctly determine
    that 35 U.S.C. § 145’s “[a]ll the expenses of the
    proceedings” provision authorizes an award of the
    United States Patent and Trademark Office’s at-
    torneys’ fees?
    (4) An original and thirty copies of the new en banc
briefs shall be filed, and two copies of each en banc brief
shall be served on opposing counsel. Appellant’s en banc
brief is due 45 days from the date of this order. Appellee’s
en banc response brief is due within 30 days of service of
appellant’s en banc brief, and the reply brief within 15
days of service of the response brief. Briefs shall adhere
to the type-volume limitations set forth in Federal Rule of
Appellate Procedure 32 and Federal Circuit Rule 32.
NANTKWEST, INC. V. MATAL                                  3



    (5) Briefing should be strictly limited to the issue set
forth above.
    (6) In addition, the parties are directed to file with
the court thirty paper copies of their original briefs and
any appendix within 17 days from the date of this Order.
    (7) Briefs of amici curiae will be entertained, and
any such amicus briefs may be filed without consent and
leave of court but otherwise must comply with Federal
Rule of Appellate Procedure 29 and Federal Circuit
Rule 29.
     (8) This appeal will be heard en banc on the basis of
the original briefs, the supplemental briefs ordered here-
in, and oral argument.
    (9) Oral argument will be held at a time and date to
be announced later.


                                  FOR THE COURT

  August 31, 2017                 /s/ Peter R. Marksteiner
      Date                        Peter R. Marksteiner
                                  Clerk of Court
