A new arrangement at the United States Patent and Trademark Office (USPTO) will give three-judge panels responsibility for merits decisions on patent challenges from Nov. 16, while the director continues discretionary screening.
The process is set out in a Nov. 10 memorandum from USPTO Director John A. Squires and General Counsel John F. Duffy. It covers inter partes review (IPR) and post-grant review (PGR) cases that have not received a notice referring them to the Patent Trial and Appeal Board (PTAB) for merits review.
The director will continue to assess issues apart from a petition’s merits, including discretionary factors. Petitions that pass that initial screen will go to a three-judge panel, which decides on the director’s behalf whether review should begin. If it does, a different panel will conduct the trial, without members from the panel that made the institution decision.
The memorandum requires petitioners to connect cited prior art to every limitation in each challenged claim and explain any argument that a claim would have been obvious. It instructs the PTAB to deny institution when petitioners lack the required showing for a substantial majority of claims. If evidence is evenly balanced on an individual claim, the petitioner has not met that claim’s threshold: “reasonable likelihood” for an IPR or “more likely than not” for a PGR.
The change reverses a move by Squires in October 2025, when merits-based institution decisions were centralized in the director’s office. An interim process introduced in March 2025 had the director handle discretionary screening, with PTAB panels reviewing petitions that advanced after consultation with at least three judges.
Squires said he had made more than 325 institution decisions involving merits considerations over the previous year. The USPTO separately said PTAB judges had assisted and advised in more than 325 such decisions. The memorandum says about 60% of petitions were denied on discretionary grounds in June 2025 and about 40% were referred for merits review. By September 2026, it put those shares at 15% and 85%, respectively.
The USPTO says the arrangement is intended to keep discretionary policy consistent while drawing on PTAB judges’ technical and legal expertise. The procedure takes effect Monday, Nov. 16.
