The USPTO today announced interim processes for Inter Partes Review (IPR) and Post Grant Review (PGR) to help the Patent Trial and Appeal Board (PTAB) manage workloads effectively. See Interim Processes for PTAB Workload Management (March 26, 2025). These changes include bifurcation of IPR and PTAB proceedings and a new opportunity for briefing by Patent Owner and Petitioner concerning discretionary denial of institution.
In particular, the Director and at least three judges will now first consider whether discretionary denial of institution is appropriate. If appropriate, the Director will deny institution.
If discretionary denial is not appropriate, the Director will issue a decision regarding the determination and refer the petition to a three-member panel of the PTAB as usual. The three-member panel will then consider and issue a decision concerning institution on the merits and other non-discretionary considerations.
This bifurcated procedure includes a briefing phase on requests for denial of institution. Within two months of the PTAB entering an IPR or PGR petition filing date, Patent Owner is now afforded the opportunity to file a brief explaining an applicable bases for discretionary denial of institution. Petitioner may file an opposition brief no later than one month later.
This represents a significant change and will alter how both Patent Owner and Petitioner approach IPR and PGR proceedings. Contact us with any questions for our PTAB experts at admin@usaipr.com.