Discretionary Briefing Is Separate, Institution Is One Decision
USPTO memoranda: 26 March 2025 (Interim Processes), 17 October 2025 (Director Institution, effective 20 October 2025), and 11 March 2026 (additional considerations). Nonbinding guidance, not rules. Current as of 29 September 2026, and see the note below on a reported change that has not been documented.
Effective October 20, 2025, the Director determines whether to institute inter partes and post-grant review, in consultation with at least three PTAB judges, weighing discretionary considerations, the merits and non-discretionary considerations together. Routine outcomes issue as summary notices. An instituted proceeding is then referred to a three-member PTAB panel to conduct the trial, and separate briefing on discretionary considerations remains due within two months of the filing-date notice.
The Director decides institution. Not a panel, and not in two stages.
The March 2025 Interim Processes split the decision: the Director ruled on discretionary denial first, and only then did a three-member panel reach the merits. The October 2025 memorandum changed that. The Director now weighs discretionary considerations, the merits and non-discretionary considerations together, in consultation with at least three PTAB judges.
Routine outcomes, granting or denying, issue as summary notices. The Director may write a reasoned decision where a proceeding involves novel or important issues, and may refer an institution decision to PTAB members where detailed treatment is warranted, such as complex claim construction, priority, or real-party-in-interest questions.
A three-member panel still appears, but later: an instituted proceeding is referred to one to conduct the trial.
What did not change is that the briefing stays apart. The October memorandum preserves the discretionary briefing track and the merits briefing track alike, and the Office's published process is explicit that discretionary arguments do not belong in the main papers: "[t]he petitioner and the patent owner should not present discretionary considerations in the petition or the Patent Owner Preliminary Response (POPR), respectively." Two sets of papers, one decision.
The Current Briefing Mechanics
These come from the Office's published process page, not from the March 2025 memorandum, which they supersede for requests due on or after 1 September 2025.
| Paper | Due | Limit |
|---|---|---|
| Patent owner's discretionary denial brief | "within two months of the date on which a Notice of Filing Date Accorded (NFDA) is entered into the record" | 20 pages; more only on good cause |
| Petitioner's opposition | "within three months" of that same NFDA, whenever the patent owner actually filed | 20 pages |
| Reply, sur-reply | "not authorized by default"; good cause must be shown | Set only if authorized |
A Reported Change, Not Yet a Document
Everything below and above describes the October 2025 process, which is what governs until a superseding memorandum issues. It is set out here rather than quietly updated because a reader who acts on this page should know both what the operative guidance says and that it is publicly reported to be ending.
This is the second time in two months that this page has had to be corrected for currency rather than for accuracy. The process it describes is guidance the Office writes for itself, and it has been rewritten twice since March 2025.
What This Does Not Decide
- It does not say whether any particular petition will be denied or instituted.
- It does not say whether a specific discretionary argument would succeed.
- It says nothing about patentability, novelty or non-obviousness.
Educational, not legal advice. This page reports what an authority says. Applying it to a matter is work for a registered practitioner with the file in front of them.
Sources
- USPTO, Interim Processes for PTAB Workload Management (Mar. 26, 2025), superseded in part
- USPTO, Director Institution of AIA Proceedings (Oct. 17, 2025), effective Oct. 20, 2025
- USPTO, Additional Discretionary Institution Considerations: U.S. Manufacturing and Small Business Use of AIA Proceedings (Mar. 11, 2026)
- USPTO, Interim Director Discretionary Process, published process page, retrieved 29 September 2026. This is the source for every deadline and page limit above
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