§324 Institution of Post-grant Review

Summary

The Director can only start a post-grant review if the petition’s evidence, if not rebutted, would more likely than not show that at least one challenged claim is not patentable. A review can also begin if the petition raises a new or unsettled legal question that matters for other patents or patent applications. The Director must decide whether to start the review within 3 months after getting a preliminary response under section 323, or, if none is filed, within 3 months after the last day that response could be filed. The Director must give written notice of the decision to the petitioner and the patent owner and make that notice public as soon as possible. The notice must state the date the review begins. The Director’s decision about whether to start the review is final and cannot be appealed.