The first half of 2025 has brought many changes at the United States Patent and Trademark Office (“USPTO”), including policy changes at the Patent Trial and Appeal Board (“PTAB”). At the end of March 2025, the issuance of the Interim Procedure for Discretionary Denials in AIA Post-Grant Proceedings with Parallel District Court Litigation memorandum (the “Interim Procedure”) and the Interim Processes for PTAB Workload Management memorandum (the “Workload Management”) initiated changes to discretionary denials for inter partes review (IPR) and post grant review (PGR) proceedings.[1] At the time, patent practitioners were unsure of the Workload Management’s exact impact. However, nearly six months later, we can now begin to analyze the resulting trends to understand the impact of the recent changes at the PTAB.
IPR & PGR Institution Rates
At this early stage, it appears that patent practitioners were accurate when they predicted that the number of discretionary denials would increase, resulting in a decrease in the number of institutions.
From FY22 to FY25 Q2, the institution rate for IPRs and PGRs increased from 66% to 68%.[2] Beginning in April 2025, after the issuance of the memoranda, the institution rate began to decrease. FY25 through April showed an institution rate by petition of 65%.[3] The institution rate decreased again according to the statistics for FY25 through May, which showed an institution rate of 63%.[4] Notably, the 63% institution rate by petition as of May 2025 is lower than the institution rate was in FY22, FY23, and FY24. Thus, in only a few months, the institution rate for IPRs and PGRs has decreased at a faster rate than by which it increased from FY22 to FY24.
Conclusion
Although it is too early to make conclusive predictions, the current institution rate trends show that the institution rate for IPRs and PGRs is decreasing at a rapid rate. The shift from a steadily increasing institution rate over the last few years to a sudden downward turn strongly suggests that the policy changes favor patent owners at the institution stage of proceedings. Based on the data through May 2025, the institution rate is likely to continue to decrease. In addition to the many procedural considerations at play, patent practitioners must now carefully consider the best big picture strategy for their clients. Adding some uncertainty to what is up ahead is the impending confirmation of John Squires as Director of the USPTO. The current flurry of discretionary denial decisions is the work of Coke Morgan Stewart, the Acting Under Secretary of Commerce for Intellectual Property and Acting Director of the USPTO. We will need to wait and see, when Director Squires takes over, whether the policy direction that led to these discretionary denials and the decrease in institution rates will be maintained or taken in a different direction. As the landscape changes and as more data becomes available, it is vital that patent practitioners consider the practical impact of the statistical trends.
[1] See Memorandum from Chief Admin. Pat. Judge Scott R. Boalick to Members of the Pat. Trial and Appeal Bd. (Mar. 24, 2025); Memorandum from Acting Under Secretary of Commerce for Intell. Prop. and Acting Dir. of the U.S. Pat. and Trademark Office Coke Morgan Stewart to All PTAB Judges (Mar. 26, 2025); see also Waltersdorff, Stephanie, The USPTO Provides Further Guidance on Discretionary Denials Policy, Rothwell Figg PTAB Law Blog (June 2, 2025), https://www.ptablaw.com/2025/01/06/trial-statistics-trends-at-the-ptab-2024-edition/.
[2] See PTAB Trial Statistics FY24 End of Year Outcome Roundup IPR, PGR, USPTO, 6, https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2024__roundup.pdf (last visited Aug. 11, 2025). FY25 through Q1 was the period from October 1, 2024 to December 31, 2024. See PTAB Trial Statistics FY25 Q1 Outcome Roundup IPR, PGR, USPTO, https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2025_q1_roundup_.pdf (last visited Aug. 11, 2025). FY25 through Q2 was the period from October 1, 2024 to March 31, 2025. See PTAB Trial Statistics FY 25 Q2 Outcome Roundup IPR, PGR, https://www.uspto.gov/sites/default/files/documents/ptab_aia_fy2025_q2_roundup.pdf (last visited Aug. 11, 2025).
[3] See PTAB Trial Statistics April 2025 IPR, PGR, https://www.uspto.gov/sites/default/files/documents/ptabaia20250430.pdf (last visited Aug. 11, 2025).
[4] See PTAB Trial Statistics May 2025, IPR, PGR, https://www.uspto.gov/sites/default/files/documents/ptabaia20250531.pdf (last visited Aug. 11, 2025).
Skip to content
