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In a trio of rulings on Nov. 6, 2025, the Federal Circuit delivered a clear message: discretionary denial of Inter Partes Review (IPR) petitions is unreviewable on appeal. The court will not interfere with the U.S. Patent and Trademark Office's (USPTO) new discretionary denial program, leaving the Director with broad authority to deny institution.
The Director's 'Unreviewable Discretion'
The headline decision, a precedential order in In re Motorola Solutions, Inc., confirms that Congress committed institution decisions to the Director's discretion, and it protected the exercise of that discretion from judicial review by making such determinations "final and nonappealable." 35 U.S.C. § 314(d).
Motorola sought mandamus relief, but such relief is ordinarily unavailable for review of the Director's institution decisions. While there are exceptions for colorable constitutional claims and certain statutory challenges, the Federal Circuit found that none of those exceptions applied here, or in its other two rulings.
In Motorola, the Federal Circuit was not persuaded that the USPTO's recission of a guidance memorandum from a prior administration, which determined how the USPTO would consider parallel patent litigation when making institution decisions, deprived an IPR petitioner of due process. Institution is a matter of discretion, and therefore, a petitioner has no constitutionally protected right to an IPR and no right to have its petition considered without regard for the counterpart litigation. The petitioner's reliance on the prior memorandum was insufficient to establish a constitutional violation, particularly when that memorandum stated that it could be modified at any time.
Motorola also rejected Administrative Procedure Act challenges to the denial of institution. In response to the argument that the USPTO changed office policy without notice-and-comment rulemaking, the Federal Circuit noted that the USPTO created its new policy using the same process through which it generated the prior memorandum. The Federal Circuit dismissed the additional argument that the USPTO failed to consider reliance interests of petitioners, holding that any such failure was unreviewable under 35 U.S.C. § 314(d).
The message for practitioners is unmistakable: the USPTO's leadership now has the tools and the judicial backing to deny IPR institution in a wide range of circumstances, and the Federal Circuit will not provide refuge to disappointed petitioners.
What About the Need to Provide Reasons?
One question remains open after these decisions: must the Director always provide reasons for denying institution? The Federal Circuit's rulings essentially are silent on this point. The underlying denials in these cases were brief, but they provided some reasoning, chiefly, the timing of the district court trial, the investment in the parallel proceeding, and the overlap of issues. On Oct. 31, 2025, the Director denied 13 petitions for IPRs without explanation and on Nov. 6, 2025, the Director denied an additional 21 petitions without explanation. It remains to be seen whether a completely unexplained denial would equally withstand scrutiny.
The Bottom Line
Discretionary denials likely are here to stay, and the Federal Circuit has made clear that it will not disturb the Director's authority in this area. For practitioners, the message is straightforward: the USPTO's leadership can deny IPR institution for discretionary considerations, and neither its prior guidance nor petitioner stipulations limit that discretion. Whether future denials must include articulated reasons remains an open question, but for now, the Director's discretion is "unreviewable."
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