The United States Patent and Trademark Office (USPTO) issued a memorandum on October 17, 2025, titled “Director Institution of AIA Trial Proceedings,” providing updated guidance to the Patent Trial & Appeal Board regarding the standards and procedures for instituting trial proceedings under the America Invents Act (AIA), including inter partes review (IPR) and post-grant review (PGR).
Since the AIA’s enactment in 2012, the Board’s trial proceedings have become a central mechanism for challenging the validity of issued patents. The institution phase, in which the Board decides whether to proceed with a trial, has been shaped by a series of precedential decisions and evolving USPTO policies, particularly regarding discretionary denials under 35 U.S.C. §§ 314(a) and 325(d).
The October 17, 2025, memorandum states that to “improve efficiency, consistency, and adherence to the statutory requirements for institution of trial, effective October 20, 2025, the Director will determine whether to institute trial for [IPR and PGR] proceedings.” If the Director determines that review is appropriate based on discretionary, merits-based, or other considerations, the USPTO will issue a summary notice granting institution for at least one challenged claim. If the Director determines review is not appropriate, the USPTO will issue a summary notice denying institution. For cases involving novel or complex issues, the Director may issue a detailed decision or refer the matter to one or more Board judges. A three-member Board panel will conduct all instituted reviews. The memorandum also notes that the USPTO has issued more than 580 prior decisions under interim processes that offer guidance on handling of discretionary factors.
