In an Open Letter and accompanying memo on October 17, 2025, the U.S. Patent and Trademark Office (USPTO) announced that the USPTO Director will personally decide whether to institute Inter Partes Review (IPR) and Post‑Grant Review (PGR) petitions. This authority had previously been delegated to three judge panels at the Patent Trial & Appeals Board (PTAB) under the 2011 America Invents Act.
On October 17, 2025, the Director of the USPTO announced that the prior delegation was permissive, not exclusive. According to the Director, the initial delegation was practical, but “experience has raised structural, perceptual, and procedural concerns inconsistent with the AIA’s design, clear language, and intent affecting, among other things, the public’s rightful expectation of impartiality.” (Italics in original.)
Going forward, the Director will determine whether to institute IPR and PGR proceedings, and will do so in consultation with at least three PTAB judges. The Director will then issue a “summary notice,” informing the parties whether institution is granted or denied.
Further, according to the Director’s memo, “[i]n proceedings involving novel or important factual or legal issues, the Director may issue a decision on institution addressing those issues.” And, where detailed issues are raised in a petition, such as “complex claim construction issues, priority analysis, or real party in interest determination … the Director may refer the decision on institution to one or more members of the PTAB.”
Key Takeaways
- Institution decisions are now centralized: the USPTO Director will determine whether to institute under 35 U.S.C. §§ 314(a) and 324(a).
- The USPTO Director will issue summary notices to either institute or deny a petition.
- PTAB merits trials unchanged: three‑judge panels will continue to conduct instituted trials and issue final written decisions.
Practical Implications
The practical implications for patent owners and petitioners are significant. Obviously, petitioners will want to prioritize arguments and elevate the quality of their petitions. To the extent possible, petitioners will need to emphasize why their petition involves novel legal or factual issues. On the other hand, patent owners will want to assess the strength and variability of asserted patent claims, and emphasize – when applicable – that the matters before the USPTO can be resolved in an already-pending lawsuit. Similarly, patent owners will want to align their arguments with Director-level considerations.
It will be interesting to see how district courts respond to motions to stay litigation given a pending request for review before the USPTO. Generally, such motions have been well-received by district courts given the likelihood of institution. District courts may be rejecting such motions now or, more likely, waiting to stay any lawsuit until the Director decides whether or not to institute review.
Finally, patent owners and petitioners alike should watch closely for updates on any changes to the PTAB process as well as to the statistics regarding post-grant review institutions v. denials.
Michael Best’s IP Litigation and PTAB teams represent both patent owners and petitioners. We advise on portfolio‑level enforcement and defense planning in order to help clients achieve their business goals.