35 U.S.C. 312 Determination of issue by Director.
- (a) REEXAMINATION.— Not later than 3 months after the filing of a request for inter partes reexamination under section 311, the Director shall determine whether the information presented in the request shows that there is a reasonable likelihood that the requester would prevail with respect to at least 1 of the claims challenged in the request, with or without consideration of other patents or printed publications. A showing that there is a reasonable likelihood that the requester would prevail with respect to at least 1 of the claims challenged in the request is not precluded by the fact that a patent or printed publication was previously cited by or to the Office or considered by the Office.
- (b) RECORD.— A record of the Director’s determination under subsection (a) shall be placed in the official file of the patent, and a copy shall be promptly given or mailed to the owner of record of the patent and to the third-party requester.
- (c) FINAL DECISION.— A determination by the Director under subsection (a) shall be final and non-appealable. Upon a determination that the showing required by subsection (a) has not been made, the Director may refund a portion of the inter partes reexamination fee required under section 311.
(Added Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-570 (S. 1948 sec. 4604(a)); subsections (a) and (b) amended Nov. 2, 2002, Public Law 107-273, secs. 13105 and 13202, 116 Stat.1900-1901 ; subsections (a) and (c) amended Sept. 16, 2011, Leahy-Smith America Invents Act, Public Law 112-29, sec. 6(c)(3), 125 Stat. 284.)
[*Begin Editor's Note: 35 U.S.C. 312 Transition provision (Sept. 16, 2011)]
Pursuant to the Leahy-Smith America Invents Act, Public Law 112-29, sec. 6(c), 125 Stat. 284, the provisions of 35 U.S.C. 312 as set forth above shall apply to requests for inter partes reexamination that are filed on or after Sept. 16, 2011, but before Sept. 16, 2012.
[*End Editor's Note: 35 U.S.C. 312 Transition provision (Sept. 16, 2011)]