35 U.S.C. 312 (transitional): Determination of issue by Director

Taken from the Ninth Edition of the MPEP, Revision 07.2015, Last Revised in November 2015

Current Pre-AIA AIA Redline

Previous: §311 (pre‑AIA) | Next: §313 (transitional)

35 U.S.C. 312 (transitional)   Determination of issue by Director.

[Editor Note: Applicable to requests for inter partes reexamination filed on or after Sept. 16, 2011, but before Sept. 16, 2012.]

  • (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; amended Sept. 16, 2011, Public Law 112-29, sec. 6(c)(3), 125 Stat. 284.)