U.S. Code » Title 35 » Part PART III— PATENTS AND PROTECTION OF PATENT RIGHTS › Chapter CHAPTER 32— POST-GRANT REVIEW

35 U.S.C. § 324

Institution of post-grant review

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(a)Threshold.—The Director may not authorize a post-grant review to be instituted unless the Director determines that the information presented in the petition filed under section 321, if such information is not rebutted, would demonstrate that it is more likely than not that at least 1 of the claims challenged in the petition is unpatentable.(b)Additional Grounds.—The determination required under subsection (a) may also be satisfied by a showing that the petition raises a novel or unsettled legal question that is important to other patents or patent applications.(c)Timing.—The Director shall determine whether to institute a post-grant review under this chapter pursuant to a petition filed under section 321 within 3 months after—(1) receiving a preliminary response to the petition under section 323; or(2) if no such preliminary response is filed, the last date on which such response may be filed.(d)Notice.—The Director shall notify the petitioner and patent owner, in writing, of the Director’s determination under subsection (a) or (b), and shall make such notice available to the public as soon as is practicable. Such notice shall include the date on which the review shall commence.(e)No Appeal.—The determination by the Director whether to institute a post-grant review under this section shall be final and nonappealable.(Added Pub. L. 112–29, § 6(d), Sept. 16, 2011, 125 Stat. 306.)Statutory Notes and Related SubsidiariesEffective 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.

Notes of Decisions
Cited in 25 cases (5 in the last 5 years), 2013–2023 · leading case: Credit Acceptance Corp. v. Westlake Services
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Credit Acceptance Corp. v. Westlake Services (2017) cafc · cites it 10× “The PTO relies on 35 U.S.C. § 324 (e), which provides, “[t]he determination by the Director whether to institute a post-grant review under this section shall be final and nonappealable.”
Versata Development Group, Inc. v. SAP America, Inc. (2015) cafc · cites it 14× “35 U.S.C. § 324 (e) (emphasis added). As noted, this statute is applicable to post-grant reviews and CBM proceedings; the PTAB acts for the Director in deciding whether to institute a review, see 35 U.”
Wi-Fi One, LLC v. Broadcom Corporation (2018) cafc · cites it 4× “2017) (holding that a simi- lar nonappealability provision with respect to post-grant review, 35 U.S.C. § 324 (e), does not preclude our review of an estoppel determination under 35 U.”
Return Mail, Inc. v. United States Postal Service (2017) cafc · cites it 5× “” 35 U.S.C. § 324 (a), (b). This task has been delegated to the Board by regulation.”
Blue Calypso, LLC. v. Groupon, Inc. (2016) cafc · cites it 2× “In Blue Calypso’s view, the Board never should have instituted the CBM review of its patents.”
Virtualagility Inc. v. salesforce.com, Inc. (2014) cafc · cites it 2× “” 35 U.S.C. § 324 (a). In this case, the PTAB expressly determined that all of the claims are more likely than not unpatentable.”
Smartflash LLC v. Apple Inc. (2015) cafc · cites it 4× “35 U.S.C. §324 (a). My colleagues require that the litigation against Ap- ple nonetheless proceed, to a complex new damages trial, certain to be followed by post-trial proceedings on all of the issues of validity and infringement, then also certain to be followed by…”
Achates Reference Publishing, Inc. v. Apple Inc. (2015) cafc · cites it 2× “§ 314 (a), and in CBMR petitions it must be “more likely than not,” 35 U.S.C. § 324 (a). An IPR proceeding “may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the…”
Versata Development Corp. v. Rea (2013) vaed · cites it 4× “) *917 On January 9, 2013, after consideration of Versata’s and SAP’s submissions, the PTAB ultimately granted SAP’s request for post-grant review of the '350 patent under 35 U.S.C. § 324 and issued a forty-four page opinion explaining that decision.”
Sightsound Technologies, LLC v. Apple Inc. (2015) cafc “” 35 U.S.C. § 324 (e). As noted, this provision is applicable to both PGR and CBM proceedings; the Board acts for the Director in deciding whether to institute a review.”
Cxloyalty, Inc. v. Maritz Holdings Inc. (2021) cafc “makes clear that the threshold determination” that a “pa- tent qualifies for CBM review is a decision that is non-ap- pealable under 35 U.S.C. § 324 (e).” 980 F.3d 865, 867 (Fed.”
Sipco, LLC v. Emerson Electric Co. (2020) cafc “The Supreme Court’s decision in Thryv, we hold, makes clear that the threshold determination that SIPCO’s ’842 patent qualifies for CBM review is a decision that is non- appealable under 35 U.S.C. § 324 (e). We therefore are pre- cluded from reviewing SIPCO’s challenge to that…”
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