37 CFR 42.200: Procedure; pendency

Taken from the Ninth Edition of the MPEP, Revision 07.2022, Published February 2023

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42.200    Procedure; pendency.

  • (a) A post-grant review is a trial subject to the procedures set forth in subpart A of this part.
  • (b) In a post-grant review proceeding, a claim of a patent, or a claim proposed in a motion to amend under § 42.221, shall be construed using the same claim construction standard that would be used to construe the claim in a civil action under 35 U.S.C. 282(b), including construing the claim in accordance with the ordinary and customary meaning of such claim as understood by one of ordinary skill in the art and the prosecution history pertaining to the patent. Any prior claim construction determination concerning a term of the claim in a civil action, or a proceeding before the International Trade Commission, that is timely made of record in the post-grant review proceeding will be considered.
  • (c) A post-grant review proceeding shall be administered such that pendency before the Board after institution is normally no more than one year. The time can be extended by up to six months for good cause by the Chief Administrative Patent Judge, or adjusted by the Board in the case of joinder.
  • (d) Interferences commenced before September 16, 2012, shall proceed under part 41 of this chapter except as the Chief Administrative Patent Judge, acting on behalf of the Director, may otherwise order in the interests-of-justice.
[Added, 77 FR 48680, Aug. 14, 2012, effective Sept. 16, 2012; para. (b) revised, 81 FR 18750, Apr. 1, 2016, effective May 2, 2016; para. (b) revised, 83 FR 51340, Oct. 11, 2018, effective Nov. 13, 2018]
[See §§ 42.200 - 42.224 Applicability Note ]