35 U.S.C. § 328 — Decision of the Board

submitted 15 years ago by Pub. L. 112-29 to r/title-35-PATENTS · 253 words · no verdicts yet

in plain englishAI-generated · not legal advice

The Board issues a final written decision on every challenged patent claim. Once appeals end, the Director cancels unpatentable claims and confirms the rest. New or amended claims get the same "intervening rights" protection as reissued patents.

(a) Final Written Decision — If a post-grant review is instituted and isn't dismissed, the Patent Trial and Appeal Board must issue a final written decision. That decision covers whether every claim the petitioner challenged — and any new claim added under section 326(d) — can be patented. (b) Certificate — Once the Board issues that decision and the time to appeal has run out (or any appeal is finished), the Director must issue and publish a certificate. That certificate cancels any claim finally found unpatentable, confirms any claim found patentable, and adds into the patent any new or amended claim found patentable. (c) Intervening Rights — If a proposed amended or new claim is found patentable and added to the patent, anyone who — before the certificate issued — made, bought, used, or imported into the U.S. something covered by that claim, or made substantial preparations to do so, gets the same protection ("intervening rights") that section 252 gives for reissued patents. (d) Data on Length of Review — The Patent Office must make public how long each post-grant review took, from when it started to when the final written decision came out.

the actual law source: uscode.house.gov ↗public domain

(a)Final Written Decision.—

If a post-grant review is instituted and not dismissed under this chapter, the Patent Trial and Appeal Board shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner and any new claim added under section 326(d).

(b)Certificate.—

If the Patent Trial and Appeal Board issues a final written decision under subsection (a) and the time for appeal has expired or any appeal has terminated, the Director shall issue and publish a certificate canceling any claim of the patent finally determined to be unpatentable, confirming any claim of the patent determined to be patentable, and incorporating in the patent by operation of the certificate any new or amended claim determined to be patentable.

(c)Intervening Rights.—

Any proposed amended or new claim determined to be patentable and incorporated into a patent following a post-grant review under this chapter shall have the same effect as that specified in section 252 for reissued patents on the right of any person who made, purchased, or used within the United States, or imported into the United States, anything patented by such proposed amended or new claim, or who made substantial preparation therefor, before the issuance of a certificate under subsection (b).

(d)Data on Length of Review.—

The Office shall make available to the public data describing the length of time between the institution of, and the issuance of a final written decision under subsection (a) for, each post-grant review.

Source credit: (Added and amended Pub. L. 112–29, §§ 6(d), 20(j), Sept. 16, 2011, 125 Stat. 310, 335.)

history & why it existsrecord from the source credit

2011Enacted · Pub. L. 112-29 · 125 Stat. 310, 335

A history note hasn’t been published yet. The record shows enactment by Pub. L. 112-29 on 2011-09-16.

all 0 arguments · sorted by: best

no arguments yet — make the first case