Director Institution of AIA Trial Proceedings

Effective October 20, 2025, the Director, in consultation with at least three PTAB judges, determines whether to institute trial in all IPR and PGR proceedings, considering discretionary considerations, the merits, and non-discretionary considerations. Routine institution decisions issue as summary notices granting or denying institution, and instituted trials are referred to a three-member PTAB panel. Petitioners and patent owners should expect institution outcomes, including on the merits, to come from the Director as summary notices, usually without explained reasoning, and merits-based institution decisions will no longer go to a three-member panel. Briefing on discretionary considerations, the merits and non-statutory considerations stays the same. The memorandum grounds this in 35 U.S.C. § 314(a), (b) and (c) and § 324(a), (c) and (d), and says it flows from the March 26, 2025 Interim Processes for PTAB Workload Management. Parties may get a written decision where the case involves novel or important issues, or a PTAB-member decision where detailed treatment is warranted. WHAT IT DOES: The Director, in consultation with at least three PTAB judges, determines whether to institute in all IPR and PGR proceedings after reviewing discretionary considerations, the merits and non-discretionary considerations. If institution is appropriate on at least one ground for one challenged claim, the Director issues a summary notice granting institution; otherwise a summary notice denying it. The Director may issue a decision on institution for novel or important factual or legal issues, and may refer a decision to one or more PTAB members where detailed treatment is appropriate (e.g., complex claim construction, priority analysis, or real party in interest determination). Instituted trials go to a three-member panel assigned under SOP 1 (Rev. 16). WHO AND WHEN: Effective October 20, 2025, for all IPR and PGR proceedings. Petitions referred to the PTAB for the merits and non-discretionary considerations under the Interim Processes before October 20, 2025 remain with a three-member panel. KEY QUOTE: "Similar to the discretiona1y considerations process, the Director, in consultation with at least three PTAB judges, will determine whether to institute trials in all IPR and PGR proceedings." (p. 1) EARLIER GUIDANCE AFFECTED: Supersedes the March 26, 2025 memorandum "Interim Processes for PTAB Workload Management" ("Interim Processes") only to the extent that (1) routine institution decisions are limited to summary notices and (2) merit-based institution decisions are not referred to a three-member panel. The briefing process for discretionary considerations, in the Interim Processes and the Discretionary Decisions webpage, and for the merits and non-statutory considerations, remains the same. SOP 1 (Rev. 16) governs panel assignment for instituted trials. PRACTICE TIP: Put your full institution case, discretionary and merits, into the existing briefing, because the Director will decide institution on that record and will usually issue only a summary notice; also review the 580-plus Interim Processes decisions the memorandum says guide discretionary considerations. Issued by John A. Squires, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.