PATENT OPPOSITION AT THE USPTO - THE DIRECTOR’S CUT

Inter Partes Review: The New Age

As of October 2025, the Inter Partes Review (IPR) procedure at the U.S. Patent and Trademark Office (USPTO) has undergone a fundamental institutional shift. John Squires, the recently appointed USPTO Director, has reclaimed direct authority over whether IPR petitions are instituted. Although this authority formally resides with the Director under the America Invents Act (AIA), it had for many years been exercised in practice by the Patent Trial and Appeal Board (PTAB).

The practical consequence of this change has been striking: in the months following the Director’s intervention, all known IPR institution requests have been denied. Commentators have aptly described this as an “era of no,” marking a radical departure from over a decade of PTAB practice.

This is not merely an internal procedural adjustment. It amounts to a de facto suspension of what has, since 2012, been the most important administrative mechanism for challenging issued U.S. patents. For many stakeholders, this raises a fundamental question: if IPR no longer functions as an accessible path to invalidate weak patents, what options remain?

What is IPR?

To understand the magnitude of this change, it is worth revisiting why IPR was created in the first place.

Before the America Invents Act introduced IPR in September 2012, parties seeking to challenge a U.S. patent had essentially two options.

The first was Ex Parte Reexamination (EPR). This is a relatively inexpensive administrative procedure in which any third party can request that the USPTO reconsider patentability in light of prior art patents or printed publications. However, once the request is granted, the challenger is excluded from the process. The procedure continues solely between the patentee and the Office. Strategically, this is a major drawback: the challenger has no right to argue, respond, or appeal. The procedure is similar to Third Party Observations, but with the difference that it remains available after grant, with some restrictions.

The second option lay at the other extreme, and was district court litigation, typically with invalidity raised as a defense or counterclaim. While this route provides full procedural rights — discovery, expert testimony, hearings, and appeal — it is notoriously expensive. Costs in the millions of dollars are routine, and timelines often stretch over several years. Moreover, technical patent validity questions are ultimately decided by judges or juries who may lack specialized expertise.

In order to find a middle ground, Inter Partes Review was introduced in 2012. This procedure was conducted before the PTAB, IPR allowed a challenger to remain a full party throughout the procedure, while confining the dispute to written prior art and patentability grounds. The process was faster, cheaper than litigation, and adjudicated by technically trained administrative patent judges. In functional terms, IPR quickly became the closest U.S. analogue to opposition proceedings before the European Patent Office.

For over a decade, IPR served as the primary mechanism for efficiently correcting overbroad or invalid patents without resorting to full-scale litigation.

Quality Control

From a policy perspective, the success of IPR is difficult to dispute. Statistical data from the PTAB consistently showed that a significant proportion of instituted IPRs resulted in partial or complete invalidation of challenged claims. While exact numbers vary by year and technology sector, it was common for 60–70% of final written decisions to cancel at least some claims, with full claim cancellation occurring in a substantial subset of cases.

This track record led critics to label the PTAB a “patent death squad,” but from another perspective, the data simply reflected the reality that many issued U.S. patents — particularly in fast-moving technical fields — were of questionable validity. IPR in reality functioned as a quality control mechanism, correcting examination errors at a fraction of the cost of litigation.

Importantly, the mere availability of IPR also shaped litigation behavior. The credible threat of an IPR challenge frequently led to earlier settlements, narrower claim assertions, or more realistic licensing negotiations.

Removing this tool therefore has consequences far beyond the PTAB itself.

The “Why” behind the “No”

The near-total shutdown of IPR institution cannot be understood in isolation. It aligns with broader shifts in U.S. political and economic policy.

Over the past several years, the United States has increasingly embraced industrial policy, emphasizing domestic innovation, strategic technologies, and protection of U.S. intellectual property against foreign competition. Strong patents are viewed not merely as private rights, but as instruments of national economic policy.

Against this backdrop, IPR has long been criticized for disproportionately benefiting large technology companies and foreign challengers, who could cheaply invalidate U.S. patents after issuance. From a political standpoint, weakening IPR can be framed as strengthening patent certainty, encouraging investment, and supporting domestic patentees, particularly startups and manufacturing-oriented industries.

This is furthermore reflected in recent regulatory changes governing IPR proceedings for a future where the “no” won’t be the default. One of these recent changes is that the “real parties in interest” that petition for the IPR need to be identified, with the allegiance of those parties being taken under consideration for the grant or refusal of the IPR petition.

Lastly, there is the judicial dimension. The Supreme Court has repeatedly narrowed administrative power and emphasized separation-of-powers concerns. Concentrating institution authority in the hands of a politically accountable USPTO Director, rather than an internal tribunal, may be seen as a response to these constitutional pressures.

In short, the change reflects a deliberate rebalancing: away from post-grant patent correction, and toward maximum deference to issued patents. The question is whether this is justified.

What’s on the horizon?

The consequences of this shift will be substantial, for patentees and other parties.

First, district court litigation will become more central and more expensive. Without IPR as a credible alternative, accused infringers will be forced to litigate validity in court, with all the associated costs, delays, and uncertainty. This will disproportionately affect small and medium-sized companies that previously relied on IPR as a defensive tool.

Second, settlement dynamics will change. Patentees holding weak but presumptively valid patents will gain leverage, as the cost of challenging validity rises dramatically. This may increase nuisance litigation and pressure defendants into settlements untethered from true patent strength, and may boost non-practicing entities and so-called patent trolls at the cost of innovation.

Third, the U.S. system will further diverge from international practice. While Europe continues to rely heavily on centralized opposition proceedings, the U.S. may evolve toward a system where post-grant correction is rare and validity disputes are resolved almost exclusively through expensive litigation.

Finally, there is a systemic risk: by insulating issued patents from efficient administrative review, the USPTO may undermine confidence in patent quality over the long term. Strong patents benefit from weak patents being eliminated. If that balance is lost, the legitimacy of the system itself may suffer.

Conclusion

Inter Partes Review was never a perfect system. But for more than a decade, it provided a pragmatic, efficient, and technically informed mechanism to challenge questionable patents. The USPTO Director’s decision to effectively halt IPR institution marks a decisive policy choice — one that prioritizes patent stability over patent accuracy.

Whether this shift will strengthen U.S. innovation or merely shift costs and risks into the courts remains to be seen. What is clear is that the era of IPR as a reliable middle ground is, for now, over.