Interim Director Discretionary Process

The webpage sets out the Interim Director Discretionary Process, a bifurcated approach under the March 26, 2025 Process Memorandum in which the Director decides discretionary denial of IPR and PGR petitions before a Board panel addresses the merits and other non-discretionary issues. It explains when and how the patent owner's discretionary denial brief and the petitioner's opposition are filed, their timing, content and page limits, how the Director decides, and how rehearing, Director Review and conflicts of interest are handled. Petitioners must keep discretionary arguments (including § 325(d), parallel proceedings, parallel and serial petitions) out of the petition and raise them only in an opposition due three months after the NFDA. Patent owners may, but need not, file a discretionary denial brief within two months of the NFDA; if they raise discretionary bases at all, they must do so in that brief, and if they file none, the case passes to a Board panel. Both sides face a 20-page limit for requests due on or after September 1, 2025, and no stipulated extensions. The page rests on the Process Memorandum, 37 C.F.R. §§ 42.6(a)(3), 42.75(c) and 42.15(f), and 5 C.F.R. Part 2635 (conflicts). The October 3, 2025 update changed sections V.A and VI. WHAT IT DOES: Bifurcates institution into a Director decision on discretion and a Board panel decision on merits and non-discretionary issues. The patent owner may file a discretionary denial brief and the petitioner may oppose it. Neither petition nor POPR should address discretionary considerations. Replies and sur-replies are not authorized by default and require good cause, requested by email as soon as practicable. The Director, consulting at least three senior PTAB judges separate from the merits judges, either denies the petition or refers it to the Board, ordinarily within one month of the last relevant paper. A Board panel is not bound by the Director's merits assessment but must explain any different findings. Stipulations such as Sotera should be filed promptly, and the Director considers whether they materially reduce overlap. WHO AND WHEN: Applies to all IPRs and PGRs in which the POPR deadline is after March 26, 2025. The patent owner brief is due within two months of the NFDA and the petitioner opposition within three months of the NFDA, and the parties may not stipulate to later dates. The 20-page limit applies to requests due on or after September 1, 2025, and the 14,000-word limit applies to those due before. Requests for rehearing or Director Review of a denial are due within 30 days of the decision. Sections V.A and VI were updated on October 3, 2025. KEY QUOTE: "A patent owner is not required to file a discretionary denial brief." (Section I.H, Optional process) EARLIER GUIDANCE AFFECTED: Supersedes the April 25, 2025 FAQs for Interim Processes for PTAB Workload Management, which are now archived. It implements the March 26, 2025 Process Memorandum and follows existing Board precedent and the Consolidated Trial Practice Guide (Nov. 2019). It also notes that 37 C.F.R. § 42.6(a)(3) (the prohibition on incorporation by reference) does not bar directing attention to the petition or POPR in the discretionary briefs. PRACTICE TIP: Put every discretionary argument and supporting evidence in the discretionary briefs, not the petition or POPR, and calendar the two-month and three-month NFDA deadlines, which cannot be extended by stipulation. Keep each brief within 20 pages and refer to the merits only briefly, without repeating them.