Reexams Surge Again in Q1—Prompting USPTO to Take Limiting Measures

At a recent Congressional hearing, USPTO Director John Squires responded to pointed questions about changes impacting the Patent Trial and Appeal Board (PTAB) over the past year. Squires told legislators that even under new processes governing America Invents Act (AIA) review institution, which have been widely seen as restricting access to the PTAB, defendants still have other options to challenge patent validity outside district court. The Director pointed specifically to ex parte reexamination—which, while historically slower than inter partes reviews (IPRs), are not subject to discretionary denials to the same extent.

As RPX has previously noted, reexam filings have tended to climb in response to policy shifts that constrain IPR access: In 2020, the year that the Fintiv decision was designed as precedential, the number of requests for ex parte reexam increased by 21%, and then by 53% in 2021. While they held steady at about 330 requests per year in 2022 (the year Vidal issued the just-overturned guidance limiting NHK-Fintiv) and 2023, they surged by 27% in 2024 (following a decision by Vidal, in CommScope v. Dali Wireless, that limited the “compelling merits” exception then in effect under the 2022 guidance) and jumped even further, by 58%, in 2025.

The first quarter saw a particularly large spike in filings, going up by 190% compared to Q1 2025.

Also, data indicate that the share of patents with reexam requests that have also been litigated in district court has continued to climb—reaching 82% in Q1 2026, up from 71% in 2025 as a whole. Data additionally show that the amount of patents for which defendants have also requested IPRs has kept rising, following a steady downward slide: After peaking at 36% in 2021 and decreasing to 33% in 2022, 24% in 2023, and 20% in 2024, this share jumped to 29% in 2025 and then to 39% in Q1 2026.

This all strongly suggests that the USPTO’s changes limiting the availability of IPR have continued to drive growth in reexam filings.

In a February “USPTO Hour” webinar, Deputy Commissioner for Patents Charles Kim acknowledged that had been a “significant increase in reexam filings over the past few months” and stated that the USPTO was “actively taking steps to address this increase in filings, to help ensure that the [Central Reexamination Unit] maintains high quality and timeliness”. Those steps included pilot programs that reduced the size of the conference panels that consider reexam requests from three members to two as well as the introduction of a production system to track specialists’ work on reexams.

The most significant such step came just after the end of Q1: On April 1, the USPTO announced a new pre-order procedure that will give patent owners the chance to file a paper arguing why the prior art raised in the reexam request would not establish a “substantial new question” (SNQ) of patentability, the threshold required to initiate a reexam. Prior to this change, patent owners would only get the chance to raise an SNQ argument after the USPTO decided to move forward with the reexam. The USPTO states that this change is designed to help the agency deal with the “recent increased volume of ex parte reexamination requests”.

Under this new procedure, requesters would generally not be able to respond, with exceptions potentially made to “address alleged misrepresentations of fact or law or other improper arguments that materially impede the [SNQ] determination”. Law firm Morgan Lewis has observed that this could give patent owners a “meaningful last-word advantage”, and that overall, the new procedure “materially improves a patent owner’s procedural position in ex parte reexamination”.

See RPX’s first-quarter review for further coverage of changes impacting the PTAB, as well as the other key trends shaping patent litigation risk so far this year.