FAQs for Interim Processes for PTAB Workload Management

Superseded by Interim Director Discretionary Process (webpage). The FAQs explain how the bifurcated process under the March 26, 2025 Process Memorandum works for IPR and PGR institution. A patent owner may file a discretionary denial brief, the petitioner may oppose, and the Director decides discretionary issues before a Board panel decides the merits and other non-discretionary issues. They set out availability, timing, word limits, briefing content, rehearing and Director Review routes, conflicts-of-interest rules and P-TACTS filing steps. Petitioners must leave discretionary issues out of the petition and raise them only in an opposition to the patent owner's brief, including 35 U.S.C. § 325(d), parallel and serial petitions and parallel proceedings. Patent owners must raise discretionary denial in a separate brief, because absent extraordinary circumstances arguments in a POPR will not be considered. Both sides must put merits arguments in the petition, POPR and any authorized reply or sur-reply, since the Board panel will not consider the discretionary papers. The FAQs rest on the Process Memorandum, the Consolidated Trial Practice Guide (Nov. 2019), and 37 C.F.R. §§ 42.75(c) and 42.15(f) for Director Review. The FAQs state that they control the interim processes. WHAT IT DOES: Creates a two-step institution decision. The patent owner may file a discretionary denial brief (14,000 words), and the petitioner may file an opposition (14,000 words). The Director, consulting at least three senior PTAB judges separate from the merits judges, decides discretionary denial, normally within 1 month of the last relevant paper. If denial is not appropriate, a Board panel, typically with 2 months, decides institution on the merits and other non-discretionary issues. If no brief is filed, the case passes to a Board panel the day after the due date. Parties may not stipulate to later due dates. Discretionary arguments in a POPR will not be considered absent extraordinary circumstances. The petition should not address discretionary issues. Sotera or Sand stipulations should be filed as soon as practicable. Rehearing goes to the Board panel only for merits and non-discretionary issues, to the Director for discretionary-only issues, and by Director Review for mixed issues. WHO AND WHEN: Applies to IPRs and PGRs in which the patent owner files a POPR, or the POPR deadline occurs, after March 26, 2025. The patent owner's brief is due within two months of the Notice of Filing Date Accorded, and the opposition 1 month later, on the POPR due date. Where the brief deadline had elapsed but the POPR deadline had not, the patent owner has 1 month from the Process Memorandum. Where the brief deadline falls within 1 month of the memorandum, the Board extends it to 1 month from the notice. Cases where the POPR was filed or its deadline passed on or before March 26, 2025 proceed under prior Board precedent, including Fintiv, General Plastic and Advanced Bionics, and the Consolidated Trial Practice Guide, without the new factors. Joinder cases follow the same timing. KEY QUOTE: "If a patent owner wishes to raise any applicable bases for discretionary denial, it must do so in a discretionary denial brief." (FAQ 23, Briefing requirements) EARLIER GUIDANCE AFFECTED: Implements the March 26, 2025 Process Memorandum on interim processes for PTAB workload management. For cases outside the bifurcated process, it preserves prior Board precedent (Fintiv, General Plastic, Advanced Bionics) and the Consolidated Trial Practice Guide (Nov. 2019). The panel in a non-bifurcated or no-brief case still addresses insufficient reasonable-likelihood challenges under Chevron Oronite and Deeper (both informative). The FAQs say the Office may update them. PRACTICE TIP: Treat the discretionary brief and the merits papers as separate filings. Patent owners should put every discretionary denial argument in the PO Discretionary Denial Brief by the deadline. Petitioners should keep discretionary issues out of the petition and answer them fully in the opposition, filing any Sotera or Sand stipulation early. Both should make all merits arguments in the petition, POPR and authorized replies.