§ 328. Decision of the Board

Statutory text

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).

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.

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).

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.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

2011
Pub. L. 112–29 · 125 Stat. 310
Enacted · 35 U.S.C. § 328
(Added and amended Pub. L. 112–29, §§ 6(d), 20(j), Sept. 16, 2011, 125 Stat. 310, 335.)
Source evidence
Code source credit
(Added and amended Pub. L. 112–29, §§ 6(d), 20(j), Sept. 16, 2011, 125 Stat. 310, 335.)
Effective date note
Amendment by section 20(j) of Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title.
2011
Pub. L. 112–29 § 20(j) · 125 Stat. 310
Struck · 35 U.S.C. § 328(c)
Pub. L. 112–29, § 20(j), struck out “of this title” after “252”
Source evidence
Code amendment note
Subsec. (c). Pub. L. 112–29, § 20(j), struck out “of this title” after “252”.
Enacted provision · exact public law section
(j) Unnecessary References.— (1) In general.— Title 35, 35 USC 2, 12, 32, 41, 103, 104, 111, 119–123, 132, 135, 143, 145, 146, 154, 157, 162, 172, 182–186, 207, 210, 257, 267. United States Code, is amended by striking “of this title” each place that term appears. (2) Exception.— The amendment made by paragraph (1) shall not apply to the use of such term in the following sections of title 35, United States Code: (A) Section 1(c). (B) Section 101. (C) Subsections (a) and (b) of section 105. (D) The first instance of the use of such term in section 111(b)(8). (E) Section 161. (F) Section 164. (G) Section 171. (H) Section 251(c), as so designated by this section. (I) Section 261. (J) Subsections (g) and (h) of section 271. (K) Section 287(b)(1). (L) Section 289. (M) The first instance of the use of such term in section 375(a).
Effective date note
Amendment by section 20(j) of Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title.

1 of 2 references resolved to an enrolled provision · 1 partial

Editorial Notes

Amendments

2011—Subsec. (c). Pub. L. 112–29, § 20(j), struck out “of this title” after “252”.

Statutory Notes and Related Subsidiaries

Effective Date of 2011 Amendment

Amendment by section 20(j) of Pub. L. 112–29 effective upon the expiration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after that effective date, see section 20(l) of Pub. L. 112–29, set out as a note under section 2 of this title.

Effective Date

Section effective upon the expiration of the 1-year period beginning Sept. 16, 2011, and applicable only to patents described in section 3(n)(1) of Pub. L. 112–29 (35 U.S.C. 100 note), with certain exceptions and limitations, see section 6(f)(2), (3) of Pub. L. 112–29, set out as a note under section 321 of this title.

Credits

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