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Title 35 — PatentsRelease 119-73

§328 Decision of the Board

Title 35 › Part PART III— - PATENTS AND PROTECTION OF PATENT RIGHTS › Chapter CHAPTER 32— - POST-GRANT REVIEW › § 328

Last updated Apr 6, 2026|Official source

Summary

When a post‑grant review goes forward and is not thrown out, the Patent Trial and Appeal Board must write a final decision about whether the patent claims the petitioner attacked—and any new claim added under section 326(d)—are patentable. After the appeal time ends or any appeal finishes, the Director must issue a certificate that cancels claims found unpatentable, confirms claims found patentable, and puts any allowed new or changed claim into the patent. Those new or changed claims have the same effect on others’ rights as described in section 252 for people who made, bought, used, imported, or prepared things covered by the claim before the certificate. The Office must also publish how long each post‑grant review took from start to final decision.

Full Legal Text

Title 35, §328

Patents — Source: USLM XML via OLRC

(a)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)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)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)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

Notes & Related Subsidiaries

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 AmendmentAmendment 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.

Reference

Citations & Metadata

Citation

35 U.S.C. § 328

Title 35 — Patents

Last Updated

Apr 6, 2026

Release point: 119-73