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Discretionary Denial Comes First, and Separately

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 15 August 2026.

What it says

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 the briefing. The October memorandum expressly preserves the discretionary briefing track and the merits briefing track alike, so the separate discretionary brief remains due within two months of the filing-date notice.

Which process applied when. March 2025: bifurcated, panel decides merits. October 20, 2025: the Director decides institution as a whole. March 11, 2026: further discretionary considerations added, covering U.S. manufacturing and small-business use of AIA proceedings. Petitions referred to the PTAB for merits consideration before October 20, 2025 stayed with a three-member panel, so a filing's date determines which process governed it.

What This Does Not Decide

This is guidance, not law, and it moves. These are processes the Office adopted for itself, and they can change without notice-and-comment. They have changed twice since March 2025, which is the practical reason to check the date on any summary of PTAB institution practice, including this one.
  • 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