Trends in IPR Institution Rates Under Director Squires

Inter partes review petitions—commonly referred to as “IPRs”—have, since the America Invents Act (“AIA”) took effect in 2013, been a reliable tool for patent challengers to invalidate patents asserted against them in patent infringement proceedings. In prior years, petitions were instituted at a high rate, with over two-thirds of all petitions instituted in 2022, 2023, and 2024. In 2025, the U.S. Patent and Trademark Office (“USPTO”) had a change in leadership. In January 2025, Coke Stewart took over as Acting Director. 

Under Acting Director Stewart, the Patent Trial and Appeal Board (“PTAB”) instituted new policies regarding discretionary denial, a procedure which allowed the Director to deny IPR petitions in her discretion before the merits of IPR petitions are considered. With this new procedure in place, overall institution rates dropped in 2025. However, as this article explains, IPRs considered on their merits continued to be instituted at a high rate. IPRs, therefore, remain an integral part of overall patent litigation strategy and should always be considered in the context of the current discretionary denial landscape and an accused infringer’s litigation goals. 

Acting Director Stewart denied 60% of all petitions on a discretionary basis, issuing summary decisions with minimal analysis. In addition to reviving the Fintiv judicial economy factors, which had largely been avoidable by stipulation under prior Directors, Acting Director Stewart began analyzing other factors, including “settled expectations” which had not previously been a consideration for IPR petitioners. And when, on September 23, 2025, John Squires was sworn in as Director of the USPTO, he continued Acting Director Stewart’s approach to discretionary denial. This has led to a bevy of articles proclaiming the death of IPRs, but a close review of Director Squires’s decisions tells a different story. Indeed, if the discretionary denial process can be successfully navigated, the chances of IPR institution on the merits are high. 

IPR Merits Institution Rates Remain High 

There is no question that the new policies around discretionary denial have resulted in a substantial decrease in IPR institution rates. That does not mean, however, that IPRs should be completely discarded. They remain a useful tool for a comprehensive patent infringement defense if discretionary denial can be navigated. 

Under Director Squires, discretionary denial and merits institution decisions are delivered en masse in a single order that addresses multiple proceedings. The decisions organize the proceedings into four groups: (1) discretionary denial; (2) further review for merits consideration; (3) institution grant on the merits; and (4) institution denial on the merits. In rare instances, the Director has also reconsidered prior referral decisions, converting these proceedings to a discretionary denial based on intervening developments. Through the Director’s February 24, 2026 discretionary denial order, Director Squires has discretionarily denied 64% of all petitions he has considered, on par with Acting Director Stewart. And, for those petitions designated for merits review, the Director has instituted at a nearly 75% rate. In 2026 alone, the merits institution rate is just under 70%. 

This data demonstrates that, if the discretionary denial threshold can be overcome, merits institution is highly likely. Just as before, a strong petition is a critical component to a successful IPR; now, however, petitioners must also closely scrutinize the schedule of the co-pending district court case, the scope of any Sotera-type prior art stipulation, the age of the patents, and any prior discussions between the parties, among other considerations. Carefully navigating these criteria may not be possible for every petitioner in every case and, as a result, some cases will be less likely to survive discretionary denial than others. But if these criteria can be navigated, there is still a strong possibility of IPR institution. 

Recent Decisions Provide a Roadmap for Navigating Discretionary Denial 

Much of the pessimism surrounding IPRs in 2025 was due to the unexpected nature of the new discretionary denial procedures. Prior to Acting Director Stewart, discretionary factors were considered by the panel considering the merits of the case and typically focused on the Fintiv time-totrial factors which assessed whether it would serve judicial economy for the PTAB to consider a petition where the validity of the challenged patent would be evaluated by a jury in a similar timeframe. And this Fintiv analysis could be avoided entirely by entering into a Sotera stipulation, stipulating that if instituted, the petitioner would not pursue written prior art in the co-pending district court case—i.e., stipulating to apply the estoppel that would attach upon issuance of a final written decision. The new Acting Director changed this status quo. 

When Acting Director Stewart took over, petitions had been pending for months under this old regime. Over the next eight months, decision after decision reinforced the importance of factors such as settled expectations which assesses the age of the patent being challenged. The idea is that the longer a patent has been in force, the more settled the patentee’s expectations that it would not be challenged at IPR. But although Acting Director Stewart’s decisions were short, they gave important guideposts for petitioners about when settled expectations would apply. These guideposts have allowed, over time, petitions to be more tailored to account for discretionary factors such as settled expectations. 

Under Director Squires, discretionary criteria have crystallized even further, providing a roadmap for navigating the discretionary denial phase of an IPR proceeding. Recent decisions designated informative or precedential have illustrated the Director’s focus on inconsistent positions taken between the IPR and the co-pending district court case. In Revvo Technologies, Inc. v. Cerebrum Sensor Technologies, Inc., IPR2025-00632, Paper 20 (Nov. 3, 2025) (precedential Nov. 3, 2025), the Director explained that an IPR petitioner must explain why it takes a different claim construction in the petition and in district court. Prior to Revvo, it was common for a petitioner to adopt the patent owner’s district court claim construction. After Revvo, this is insufficient— the construction applied by the petitioner in the district court and the IPR should be the same. On the other side of the coin, in Padagis US LLC v. Neurelis, Inc., IPR2025-00464, Paper 12 (July 16, 2025) (informative Jan. 9, 2026), the Director explained that material error during prosecution—i.e., a mistake that impacted the grant of the patent—can be sufficient to avoid discretionary denial. Revvo, Padagis, and other decisions provide guidance petitioners can use to craft a strong petition that is more likely to advance past discretionary denial to merits review. 

Conclusion 

Although recent changes have significantly impacted IPR strategy, the process remains viable for wellpositioned petitioners. A party accused of patent infringement should consider filing IPRs where the facts, including whether there was material error during prosecution, warrant it. At the same time, IPR counsel should carefully coordinate with their district court counterparts to ensure there are no inconsistent positions that would make discretionary denial more likely..