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Before the PTAB

The short version

The Director decides institution, weighing discretionary considerations and the merits together. Since October 20, 2025 that is one determination rather than two stages, routine outcomes issue as summary notices, and a three-member panel appears afterward to conduct the trial. The Federal Circuit has held there is no legal right to institution underneath that discretion.

One of the four pages below records a proposal rather than a rule, and says so at the top. Authority level is stated on every page in this section because it varies.

Board practice has changed more in the last two years than the doctrine it applies. The changes are procedural, which is exactly why they are easy to miss and expensive to miss.

Read the first two together. The institution memoranda describe a process the Office wrote for itself and has revised twice. Apple v. Squires is what makes that consequential: the Federal Circuit held the Director's instructions are a general statement of policy exempt from notice-and-comment, and that Congress provided no legal right to institution. Guidance that can change without rulemaking, and no entitlement underneath it.

The Authorities

Discretionary institution The Director decides institution, not a panel, and not in two stages. Nonbinding guidance that has changed twice since March 2025. Read the Authority Apple v. Squires Meeting the statute's requirements does not entitle you to an inter partes review. Read the Authority Arthrex and Director Review You get Director Review or panel rehearing, not both. The institution-review deadline was waived to thirty days in June 2026. Read the Authority The 2025 IPR proposal A proposal, not a rule, and a final rule under OIRA review is still not a rule either. Status stated as of August 15, 2026. Read the Authority

What These Pages Do Not Decide

  • Whether any particular petition will be instituted or denied.
  • Whether a specific discretionary argument, motion to amend, or review request would succeed.
  • Whether to file at all. Nothing in this section is a filing strategy.

Educational, not legal advice. Written for registered practitioners, and reporting what each authority says rather than applying it. Two of the four pages here are agency documents, one of which has not been adopted.

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