PTAB Institution Rates Dropped in 2025 Amid Discretionary Denial Expansion

Over the course of 2025, the USPTO made a series of changes to the processes and substantive factors governing institution at the Patent Trial and Appeal (PTAB)—changes that have increasingly limited access to America Invents Act (AIA) review.

In February 2025, Acting USPTO Director Coke Morgan Stewart withdrew a 2022 guidance that had scaled back the PTAB’s use of discretionary denials in AIA reviews. The following month, Stewart then established an interim process in which the director would handle discretionary denial requests, doing so based on an expanded set of factors, including one allowing denials for patents longer in force based on the “settled expectations” of the parties. The institution rate dropped over the course of the year as a result, falling from 68% in Q1 to 42% in Q2 and just 23% in Q3.

Then, in October 2025, USPTO Director John Squires announced that he would now handle the entire AIA review institution process, including both discretionary denials and the merits/nondiscretionary factors, making those determinations with no accompanying written decisions in most cases.

Squires has rarely instituted petitions decided under this new process, doing so in just 27 of the 196 petitions decided in Q4—resulting in an institution rate of just 14%. That said, the overall institution rate for the fourth quarter was 41%.

The overall rate reached 41% for two reasons: First, the Squires-led institution process only took effect on October 20, so the Q4 rate includes petitions already referred by Stewart for which panels made the ensuing merits institution decisions while the interim institution process was still in effect. Second, the new process only covers petitions not yet filed or instituted by that date, and establishes that petitions that Stewart had already referred to a panel for the merits prong of the interim institution process would remain with those panels. Thus, a number of post-October 20 institution decisions were made by panels addressing the merits of petitions referred by Stewart.

It is also worth mentioning that in the memorandum in which Squires announced his takeover of the institution process, he remarked that the bifurcated interim process introduced in March, while “smart and necessary”, had an unintended consequence: The director explained that for the decisions that Stewart referred to PTAB panels for evaluation on the merits, an “extraordinarily high” number of those were then instituted (“at one point exceeding 95 percent”).

For more on the impact of last year’s changes at the PTAB, including a significant drop in AIA review petitions and a dramatic jump in ex parte reexaminations, see RPX’s fourth-quarter review.