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Title 35, PatentsRelease 119-110

§328 Decision of the Board

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

Last updated Sep 22, 2026|Official source

Summary

The Patent Trial and Appeal Board must issue a final written decision about whether any challenged patent claims, and any new claims added under section 326(d), are patentable when a post-grant review goes forward and is not dismissed. After that decision and when the time to appeal has passed or any appeal ends, the Director must publish a certificate that cancels claims found unpatentable, confirms claims found patentable, and adds any new or changed claims found patentable. Any new or amended claim added after review gets the same legal effect as reissued-patent claims under section 252 for people who made, bought, used, imported, or prepared for the patented item before the certificate was issued. The Patent Office must publish data showing 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)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.

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

Sep 22, 2026

Release point: 119-110