PTAB Year in Review: A Shifting Landscape and Outlook for 2026

Since the implementation of inter partes review (IPR) and post-grant review (PGR) proceedings and other changes under the America Invents Act (AIA) in September 2012, procedures and precedent at the Patent Trial and Appeal Board (PTAB) have continued to evolve.

But even against that backdrop of continuous refinement, 2025 was a year of unprecedented change at the PTAB. This article discusses some of the year’s highlights and provides a forward perspective for 2026.

Changes in USPTO leadership

The year 2025 opened with a change in leadership at the top of the U.S. Patent and Trademark Office (USPTO), beginning with the appointment of an acting director on January 20, and the swearing in of Director John Squires on September 22.

Since February 2025, leadership has implemented, at an unprecedented level, sweeping executive personnel changes throughout the USPTO—including at the PTAB—with almost no executives remaining from December 2024.

Discretionary denial updates:

Recission of 2002 Fintiv memo—February 2025

The USPTO rescinded a prior 2022 memo relating to Fintiv, a precedential decision that considers whether to discretionarily deny institution of an IPR or PGR based on when a related parallel court may complete its trial (Apple v. Fintiv, IPR2020-00019, Paper 15, PTAB May 13, 2020, precedential).

With recission of the memo, more cases were immediately subject to discretionary denial, including those with parallel ITC proceedings or those in which petitioner had entered a Sotera stipulation (Sotera Wireless v. Masimo Corp, IPR2020-01019, Paper 12, PTAB Dec. 1, 2020, precedential as to § II.A).

Bifurcated institution interim process introduced—March 2025

The USPTO issued a memorandum that bifurcated the process of determining whether to institute an AIA trial.

In a first phase, the director, in consultation with PTAB judges behind the scenes, would determine whether discretionary denial was appropriate. If not appropriate, in a second phase, a Board panel would determine whether to institute based on the merits and other non-discretionary considerations.

The memo discussed discretionary denial considerations generally, including those already existing, but most notably, introduced a number of new ones. For example, “[s]ettled expectations of the parties, such as the length of time the claims have been in force” (see also iRhythm Tech v. Welch Allyn, IPR2025-00363, Paper 10).

Under the new process, institution rates decreased to well below historical numbers seen at any time since 2012.

Director institution introduced—October 2025

Director Squires issued an ‘Open Letter’ and Guidance Memorandum indicating that he himself, in consultation with PTAB judges behind the scenes, will make all decisions on institution, evaluating both discretionary considerations and the merits.

Since that time, the director has issued decisions in the form of summary notices. At first, the notices merely indicated “thumbs up” or “thumbs down” in a paper listing case numbers. In November, the director slightly modified the notices to indicate, by case numbers in a list, whether cases: (1) were discretionarily denied, (2) would be reviewed on the merits, (3) were denied on the merits, or (4) were instituted.

The USPTO has indicated the director may issue more fulsome decisions if they relate to “novel or important” issues; thus far, few such decisions have been issued (See, eg, Ford Motor Co v. AutoConnect Holdings, IPR2025-01342, Paper 10, Dec. 4, 2025); and Caption Health v. The Univ. of British Columbia, IPR2025-01422, Paper 15, Squires Dec. 18, 2025).

Again, institution rates under this process have stayed well below historical numbers.

This new process represents a significant change. Prior to 2025, for more than 13 years, PTAB panels determined whether to institute in detailed decisions that provided substantial reasoning and information. The current process may leave many parties with minimal insight as to what to do in the aftermath.

Other major substantive updates:

Other notable policy shifts have taken place in the form of additional memoranda, director review decisions (including those designated precedential and informative), and one ex parte appeal decision issued by an Appeals Review Panel (ARP) comprising the director, commissioner of patents, and a member of PTAB leadership. These cases address issues such as:

• Real parties-in-interest (RPI): The de-designation of SharkNinja (2020) and designation of Corning (2015) now indicates that a failure by a petitioner to correctly name all RPI can lead to vacating institution and terminating an IPR.
• Parallel proceedings: Motorola (on director review) determined that a petitioner’s Sotera stipulation did not outweigh other Fintiv factors because the stipulation was not likely to moot the more expansive invalidity contentions in district court. Cambridge (informative) denied institution because the petitioner failed to either (i) explain why inconsistent positions at the PTAB and district court were warranted or (ii) set forth an alternative means-plus-function construction, as petitioner argued in district court. Hulu (informative) denied institution where a district court previously found challenged claims invalid. Under CrowdStrike (informative), if a petitioner files two parallel petitions to advance two different claim constructions, the Board should construe the claim term and institute review of, at most, one of the petitions. Under Revvo Tech (precedential), a petitioner must explain why taking alternative claim construction positions before the Board and a district court is warranted. In Tesla (informative), a petitioner’s statement that it could not raise indefiniteness challenges in an IPR was insufficient to explain why it was taking inconsistent claim construction positions before the Board and district court.
• Section 325(d): Ecto World (precedential) addressed 35 USC § 325(d) and Advanced Bionics. Among other things, this decision held that if prior art appeared previously in an IDS (even a voluminous one), the petitioner must expressly explain how the examiner erred.
• Section 101 & AI: Ex parte Desjardins (ARP, precedential) vacated the Board’s new ground of rejection under 35 USC § 101, finding claims patent eligible because they recited improvements in how a machine learning model operates. The decision indicates that examiners and Board panels should not evaluate AI claims at such a high level of generality to essentially equate any machine learning with an unpatentable algorithm without adequate explanation.
• Use of general knowledge in a ground: A July memorandum states that “Applicant-Admitted Prior Art (AAPA), expert testimony, common sense, and other evidence that is not ‘prior art consisting of patents or printed publications’ (collectively, general knowledge) may not be used to supply a missing claim limitation” in an IPR.” Such general knowledge may be used in an IPR to support motivation to combine or to demonstrate the knowledge of a person having ordinary skill in the art. The memo acknowledges that the policy “may be narrower than 35 USC § 311(b)” and Federal Circuit precedent.

Pending Notice of Proposed Rulemaking (NPRM) on IPR Institution

In October, the Office issued an NPRM “proposing new rules of practice before the PTAB to focus IPR proceedings on patent claims that have not previously been challenged in litigation or where prior litigation was resolved at an early stage.”

If implemented as proposed, these rules represent a fundamental change to institution criteria that will significantly restrict IPR availability. Comments were due on December 2, and the USPTO received more than 11,400 comments, with more than 2,800 of them being unique. Consideration of those comments and the rulemaking process will continue into 2026.

Outlook for 2026

Looking ahead to 2026, if the USPTO maintains the current trajectory of PTAB policies, the availability of IPRs as a vehicle to challenge patent validity will be more limited than has historically been the case.

Even so, IPRs and PGRs will remain an important strategic consideration—both from the viewpoint of patent owners and potential patent challengers. If IPRs remain limited, parties can likely expect an increase both in district court litigation, as well as an increase in ex parte reexamination requests being filed at the USPTO.

The only certainty looking into 2026 is that there is likely to be more change coming. It is critically important now more than ever for stakeholders to remain up to speed on the ever-changing procedures and guidance coming out of the PTAB.

We are hopeful that the Office will provide transparency, consistency, and predictability to stakeholders as processes and procedures continue to evolve.