As has been discussed throughout this publication, 2025 was a year of unprecedented change at the Patent Trial and Appeal Board (PTAB). This article discusses the impacts of a few major changes in 2025 from the perspective of three former Administrative Patent Judges (APJs) and offers an outlook for 2026.
A Few Major Changes in 2025
Changes in USPTO Leadership
The year 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 personnel changes at the executive level throughout the USPTO, including at the PTAB, with nearly no former USPTO executives remaining from December 2024. This loss of institutional knowledge has the potential to cause cascading disruptive effects across the agency in 2026.
Changes to Discretionary Denial Processes and Considerations Have Led to Significantly Lower Institution Rates in AIA Proceedings
In February, the USPTO rescinded a prior 2022 memo related to Fintiv,[1] a precedential decision that considers whether to discretionarily deny institution of an inter partes review (IPR) or post-grant review (PGR) based on when a related parallel court may complete its trial.[2] With rescission of the memo, more cases were immediately subject to discretionary denial, including those with parallel ITC proceedings or those in which the petitioner had entered a Sotera[3] stipulation.
In March, the USPTO issued a memorandum[4] 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, determined whether discretionary denial was appropriate. Only if not appropriate, in a second phase, a Board panel determined whether to institute based on the merits and other nondiscretionary considerations. The memo discussed discretionary denial considerations generally, including those already existing, but most notably introduced a number of new ones, including, for example, “[s]ettled expectations of the parties, such as the length of time the claims have been in force.”[5] Under the new process, overall institution rates decreased to well below historical numbers seen at any time since 2012.[6]
In October, Director Squires issued an “Open Letter”[7] and Guidance Memorandum[8] 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.[9] In November, the Director slightly modified the notices to indicate whether cases (1) were discretionarily denied, (2) would be reviewed on the merits, (3) were denied on the merits, or (4) were instituted.[10] 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 issued.[11] Again, institution rates under this process have stayed well below historical numbers.
For example, statistics as of December 31, 2025, show that, under this Director-led process, approximately 43% of cases have been discretionarily denied, 6% of cases await review on the merits, 18% of cases have been denied on the merits, and 33% of cases have been instituted. In 2026, we may see institution rates tick up slightly as we reach a steady state of decisions coming out of the new process.
Regardless, this new Director-led process represents a significant change. Prior to 2025, for over 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. For example, a summary notice to institute a trial gives both parties minimal insight to inform strategy, e.g., in terms of the Office’s views on claim construction, the strength or weakness of certain grounds, evidence, and the applicability of prior art. A patent owner also may lack enough information to decide whether to file a motion to amend, or to perhaps request reexamination or file a reissue application. Summary notices also provide no information as to how parties should best prepare a request for Director Review of a decision on institution.
Pending Notice of Proposed Rulemaking (NPRM) on IPR Institution
In October, the Office issued an NPRM[12] proposing new rules that, if implemented as proposed, represent a fundamental change to institution criteria that will significantly restrict the availability of IPRs. Comments were due on December 2, 2025, and the USPTO received more than 11,400 comments, with over 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 its current trajectory of policies, the availability of IPRs as a vehicle to challenge patent validity is likely to be more limited than has historically been the case. Even so, IPRs and PGRs will remain an important strategic consideration — from the viewpoint of both patent owners and potential patent challengers.
Petitioners can likely expect continued hurdles at the discretionary denial stage. They may want to move quickly when there is a parallel proceeding and to consider potential responses to discretionary arguments early, even before filing an IPR petition. If institution appears unlikely, petitioners may want to consider alternative routes to challenge patent claims, such as ex parte reexamination. In the right circumstances, however, there is a path to institution.
Patent owners can likely expect continued success in winning challenges at the PTAB early. The Office has been receptive to new types of arguments, so patent owners should continue to be creative in presenting reasons why institution should be denied. Patent owners also should anticipate that defendants may challenge the validity of claims in ex parte reexamination, either after a denial of institution or in the first instance.
The full impact of many of the changes implemented in 2025 is yet to be seen. For example, new mandatory prehearing conferences will start occurring later in 2026 as trials implemented under the new process get to the hearing stage. And it remains to be seen how final written decisions will be impacted in many cases where the briefing and arguments are made by parties that had no early guidance from the panel or Director.
In addition, because IPRs may remain limited (at least in the near term), parties can likely expect an increase in both district court and ITC litigation and challenges to claim validity in those forums.
The only certainty in our outlook for 2026 is that more change will come. 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. Over the past 13 years, the pendulum has continued to swing regarding policies related to PTAB and AIA practice. We expect it will continue to do so in 2026, and parties should be prepared to navigate shifting landscapes, especially because the full impact of many of the 2025 changes is yet to be seen. That said, we are hopeful that the Office will provide transparency, consistency, and predictability to stakeholders as processes and procedures continue to evolve.
[1] Available at: https://www.uspto.gov/about-us/news-updates/uspto-rescinds-memorandum-addressing-discretionary-denial-procedures.
[2] Apple Inc. v. Fintiv, Inc., IPR2020-00019, Paper 15 (PTAB May 13, 2020) (precedential).
[3] Sotera Wireless, Inc. v. Masimo Corp., IPR2020-01019, Paper 12 (PTAB Dec. 1, 2020) (precedential as to § II.A).
[4] Available at: https://www.uspto.gov/sites/default/files/documents/InterimProcesses-PTABWorkloadMgmt-20250326.pdf (“Interim Process Memo”).
[5] Interim Process Memo, 2; see also iRhythm Tech. v. Welch Allyn, Inc., IPR2025-00363, Paper 10 (determining patent owner’s settled expectations favored denial based on the time the patent had been in force).
[6] See e.g., PTAB Trial Statistics, 5 (Nov. 2025), available at: https://www.uspto.gov/sites/default/files/documents/Trial_Stats_November_2025.pdf.
[7] Available at: https://www.uspto.gov/sites/default/files/documents/open-letter-and-memo_20251017.pdf.
[8] Available at: https://www.uspto.gov/sites/default/files/documents/Director_Institution_of_AIA_Trial_Proceedings.pdf.
[9] See, e.g., October 31, 2025, Notice of Decisions on Institution, available at IPR2025-01014, Paper 14 (Squires Oct. 31, 2025), amended at Paper 15 (Squires Nov. 20, 2025).
[10] See, e.g., December 11, 2025, Notice of Decisions on Institution, available at IPR2025-01170, Paper 14 (Dec. 11, 2025).
[11] See, e.g., Ford Motor Co. v. AutoConnect Holdings LLC, IPR2025-01342, Paper 10 (Squires Dec. 4, 2025); Caption Health, Inc. v. The Univ. of British Columbia, IPR2025-01422, Paper 15 (Squires Dec. 18, 2025).
[12] Revision to Rules of Practice Before the Patent Trial and Appeal Board, 90 Fed. Reg. 48335, available at: https://www.govinfo.gov/content/pkg/FR-2025-10-17/pdf/2025-19580.pdf.
This article appeared in the 2025 PTAB Year in Review: Analysis & Trends report.
Related Services
Receive insights from the most respected practitioners of IP law, straight to your inbox.
Subscribe for Updates