A little over a year ago, Director of the U.S. Patent & Trademark Office (USPTO) John Squires took over all decision-making responsibilities as to whether a petition for inter partes review or post-grant review should be instituted. At that time, Director Squires was already determining whether petitions should be denied based on discretionary factors. An October 2025 memo indicated that Director Squires would also be handling institution decisions based on the merits. On November 10, 2026, the Director issued a new memorandum returning merit-based decisions on institution to delegated panels of the Patent Trial and Appeal Board (PTAB).

How Will This Affect Institution Rates?

When Director Squires assumed full responsibility for institution decisions last fall, many expected institution rates to continue dropping, as they had after Acting Director Coke Stewart removed discretionary denial responsibilities from the PTAB panels. Overall, this prediction was true – the petition institution rate in fiscal year 2026 was at an all-time low: 41%. That was down from 50% in fiscal year 2025 (Acting Director Stewart took over discretionary decisions in April 2025), and well below the 68% institution rate in fiscal year 2024.

However, these numbers are somewhat misleading. Of the 782 petitions filed in fiscal year 2026, only 44% made it past the discretionary stage. Institution rates on the merits were a whopping 77%. These statistics tell the tale – if a petitioner could survive the discretionary considerations, they had a better than 3/4 chance of getting a trial instituted. This rate appears much more in line with previous institution rates in cases handled by PTAB panels. For now, it does not appear that reinstatement of panel review of petition merits will significantly shift outcomes.

Will There Be Any Difference?

The most significant change from previous procedures is buried in the memo. A PTAB panel will decide whether to institute trial based on the merits of a petition. However, if the trial goes forward, the Director will assign a different PTAB panel to the case. Prior to Director Squires’ procedural consolidation, the same PTAB panel would both decide institution and conduct the trial. This led to charges of bias – a patent owner seemingly had an additional burden by having to convince the PTAB panel to essentially reverse its own institution decision. There was also a perception that PTAB panels instituted trials as a way to keep themselves busy, instead of actually considering the merits of the case. This change seeks to address those issues. 

One of the problems with the full review by the Director was that institution (or denial) decisions were often summary, with no opinion or reasoning given. Whereas PTAB panels were providing full opinions that gave petitioners and patent owners guidance as to the strengths and weaknesses of a case and suggestions to future litigants as to the decision process, parties were left guessing by many of the Director’s conclusions. The memo directs the PTAB panels going forward to “briefly address the merit-based considerations that the panel found important.” 

For assistance with a post-grant proceeding, contact the experienced attorneys at Panitch Schwarze.