USPTO Director Assumes Authority Over Institution Decisions

As of October 20, 2025, the USPTO Director will resume direct authority over the institution decisions for inter partes review (IPR) and post-grant review (PGR) proceedings. This change marks a return to the statutory framework outlined in the America Invents Act (AIA), where the USPTO Director, rather than panel of Patent Trial and Appeal Board (PTAB) administrative law judges (ALJs), is responsible for determining whether to institute such proceedings. 

Historically, the Director’s authority over institution decisions was delegated to PTAB panels to streamline processes and manage workload, with the same PTAB panel determining institution also handing the instituted trial itself. However, according to the newly-confirmed USPTO Director, John A. Squires, concerns have arisen regarding the impartiality and perception of self-incentivization within the PTAB, evidenced by the high rates of decisions instituting such trials. According to Director Squires, his decision to reclaim this authority aims to address these issues by eliminating potential biases and to enhance public trust in the patent adjudication process. 

The new policy will have the Director, in consultation with at least three PTAB ALJs, make the final call on whether to institute IPR and PGR trials. This approach is designed to maintain consistency and adherence to statutory requirements while allowing the PTAB to focus on conducting trials. 

Notably, however, the Director will only issue a summary notice either instituting trial or denying institution, which will be based on both discretionary and non-discretionary considerations. In cases involving complex legal or factual issues, the Director may issue a detailed decision or may refer the decision to one or more PTAB ALJs for a detailed analysis.  

The impact of such summary decisions is particularly significant as it effectively nullifies any reviewability of institution decisions. Under prior practice, an aggrieved party could seek review of an institution decision by either filing a request for rehearing or by requesting Director Review. However, these forthcoming summary notices, being issued by the Director and lacking substantive analysis, are expected to be essentially unreviewable under the current framework.

As with other recent changes to PTAB policy and procedure, this change is viewed as favoring patentees and existing patent rights and is expected to further reduce IPR and, to a lesser degree, PGR institution rates.

We are monitoring the implementation and impact of this policy change and anticipate providing a follow up alert as we learn more.