On October 29, 2025, the USPTO held a USPTO Hour to discuss Director institution for AIA trial proceedings following the October 17, 2025, memorandum ("Director Institution Memorandum") by Director Squires, which was discussed in a previous post. As previously discussed, the Director Institution Memorandum revoked the delegation of institution decisions from panels of Administrative Patent Judges (APJs) at the Board. Instead, the Director will issue decisions granting or denying institution. And on Friday, October 31, 2025, we received the first decision, denying 13 unrelated IPRs in one document.
Acting Chief Judge Kalyan Deshpande and Vice Chief Judge Michael Kim led the discussion and presentation of accompanying slides.
Key Takeaways
- The Director, in consultation with at least three APJs, will decide whether to institute all inter partes review (IPR) and post-grant review (PGR) petitions. For some complex cases, the Director may refer the decision to a panel of one or more PTAB judges.
- The Director will not provide analysis when issuing summary notices either instituting or denying a petition. This was confirmed by the Director's first set of institution decisions, a single summary notice denying thirteen IPR proceedings with no stated reasoning. The Director may still issue decisions with reasoning at his discretion for important issues.
- The Director Institution Memorandum became effective on October 20, 2025, and applies to all petitions that had not been referred to a PTAB panel by that date.
- The Director Institution Memorandum does not change the conduct of AIA trials.
Process Overview
Under the new institution procedures, the Director, in consultation with at least three APJs, will determine whether to institute all IPR or PGR trials. The three APJ panel will typically not be the same APJs on the trial panel, and the panel identities are unlikely to be disclosed consistent with the interim bifurcated review process.
Decisions will be based on review of the merits, discretionary considerations, and non-discretionary factors. There are three types of institution decisions under these procedures: summary notices, full decisions, and referral decisions. Notably, petitions for ex parte reexamination (EPR) are not subject to the new Director procedures.
Summary Notices: These will only state the outcome of the decision (i.e., institution or denial) and will not specify why, including whether a denial is merit-based or discretionary. Most decisions will be issued as summary notices.
Full Decisions: The Director may provide full decisions when the proceeding involves an important issue, such as novel or significant factual or legal questions.
Referral Decisions: These decisions will be referred by the Director to one or more PTAB members (e.g., APJs) when a more detailed analysis is needed. This may occur in cases involving complex claim construction, complicated priority questions, or disputes about real parties in interest.
Post-Institution Process
Once instituted, IPR and PGR proceedings will be referred to a three-member APJ panel for trial as per usual. Panels will be assigned according to PTAB Standard Operating Procedure (SOP) 1 (Rev. 16). Scheduling orders will not be issued with the institution decision but will be determined by the assigned panel as the case progresses. The Director has not made any other changes to the conduct of AIA trials at this time.
Procedural Details
Party briefings, including bifurcated discretionary denial briefing, and due dates remain unchanged. Before institution, motion requests and other questions should be emailed to Director_DI@uspto.gov. After institution, these communications should be emailed to trials@uspto.gov.
Petitions referred to the three-member APJ panel before October 20, 2025 will follow the previous process of being reviewed by a three-member panel. This includes referrals made under the discretionary denial process and referrals made after the patent owner has failed to file a discretionary denial brief. In these instances, the APJ panel will decide whether the petition merits warrant institution.
Decision Timing
The Office released the first decisions under the new procedures on October 31, 2025, all of which were denials. Notably, the first decisions were released as a singular notice merely listing the thirteen denied petitions without any accompanying explanation.
The Office indicated that most decisions released through November would also be denials, anticipating that institutions would begin to issue once a steady state is reached. Decisions are expected to be released weekly, likely on Fridays.
While there is currently no set decision timeline, the Office has committed not to "sit on decisions" and to act before the existing six-month deadline. The Office claimed that each petition will be reviewed thoroughly, stating that the Director "will take as much time as it takes." The Office has not yet specified where decisions will be posted, aside from the Patent Trial and Appeal Case Tracking System (P-TACTS).
Review and Appeals
Parties may request rehearing or Director review of summary notices. The standard for review remains unchanged: institution decisions may be challenged only on the grounds of (a) an abuse of discretion, (b) important issues of law or policy, (c) erroneous findings of material fact, or (d) erroneous conclusions of law. However, because summary notices are issued without any reasoning, it remains unclear how parties can effectively argue these grounds, particularly erroneous findings of fact or conclusions of law, when the decision provides neither factual findings nor legal conclusions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
