Reexams Rose as Discretionary Denial Changes Constrained IPRs
August 20, 2025
In the second quarter of 2025, Acting USPTO Director Coke Morgan Stewart continued to roll back restrictions on discretionary denials at the Patent Trial and Appeal Board (PTAB), causing a drop in America Invents Act (AIA) review institution rates. As petitioners face the resulting likelihood that inter partes review (IPR) availability will be further constrained, they appear to have made a familiar shift back toward ex parte reexaminations—which, while slower than IPRs, are not subject to discretionary denials to the same extent.
The popularity of reexams has tended to climb in response to policy shifts bolstering discretionary denials: In 2020, the year that the Fintiv decision (which governs discretionary denials based on parallel litigation) 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 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).
After a relatively flat first quarter, reexams swung back upward by 32% in Q2 compared to the same quarter last year—coinciding with most of the aforementioned rollbacks to Vidal-era Fintiv restrictions. The second quarter saw the second-highest number of reexam requests of any quarter in the past six years, falling just short of Q3 2024. Reexam filings in the first half of the year were also 13% higher compared to 1H 2024.
Additionally, data indicate that the share of patents with reexam requests that have also been litigated in district court was 68% in 1H 2025, up from 54% last year. Data also show that defendants have requested IPRs for a decreasing share of those same patents, from a peak of 36% in 2021 to 20% in 2024 overall and 21% in the first half of 2025.
For more on the PTAB, discretionary denials, and other developments impacting the patent space more broadly, see RPX’s second-quarter review.
