Within three months following the filing of a request for reexamination under the provisions of section 302, the Director will determine whether a substantial new question of patentability affecting any claim of the patent concerned is raised by the request, with or without consideration of other patents or printed publications. On his own initiative, and any time, the Director may determine whether a substantial new question of patentability is raised by patents and publications discovered by him or cited under the provisions of section 301 or 302. The existence of a substantial new question of patentability 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.

A record of the Director’s determination under subsection (a) of this section will be placed in the official file of the patent, and a copy promptly will be given or mailed to the owner of record of the patent and to the person requesting reexamination, if any.

A determination by the Director pursuant to subsection (a) of this section that no substantial new question of patentability has been raised will be final and nonappealable. Upon such a determination, the Director may refund a portion of the reexamination fee required under section 302.

(Added Pub. L. 96–517, § 1, Dec. 12, 1980, 94 Stat. 3015; amended Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4732(a)(9)(A), (10)(A)], Nov. 29, 1999, 113 Stat. 1536, 1501A–582; Pub. L. 107–273, div. C, title III, §§ 13105(a), 13206(b)(1), Nov. 2, 2002, 116 Stat. 1900, 1905, 1906; Pub. L. 112–29, §§ 6(h)(1)(A), 20(j), Sept. 16, 2011, 125 Stat. 312, 335.)