An Era of No: The USPTO’s New 0% Institution Rate

by Dennis Crouch

USPTO Dir John Squires has now issued 34 decisions on IPR institution since assuming personal control of the institution process in October 2025, with all 34 petitions denied. The Director's November 6, 2025 notice denies institution in 21 additional IPRs, following an October 31 notice denying 13 others. These summary orders provide no reasoning or analysis, listing only the denied IPR numbers and stating that "institution of inter partes review is denied." The Director appears to be using institutional silence as a policy instrument to strengthen patent rights by avoiding substantive review. The current 0% institution rate stands in sharp contrast to the PTAB's historic institution rate of approximately 67%.  This raises questions in my mind about whether the IPR system can continue to function as the alternative to district court litigation that Congress envisioned in the America Invents Act.

The statute grants the Director authority to determine whether to institute inter partes review under 35 U.S.C. § 314(a), but assigns the PTAB responsibility to conduct the trial and issue a final written decision under 35 U.S.C. § 318(a). Since the AIA's enactment in 2011, every USPTO Director delegated the institution determination to three-judge PTAB panels. Director David Kappos, who lobbied for the AIA's passage and oversaw its implementation, established this delegation framework. The practice continued for over a decade, with PTAB judges spending hours reviewing each petition, considering the substantive patentability showing and discretionary factors, and drafting reasoned institution decisions that provided guidance to the patent bar.

Acting Director Derrick Stewart began reclaiming institution decision authority in early 2025, personally reviewing selected cases where Patent Owners requested discretionary denial. Director Squires has now taken full personal control over all institution decisions. The shift creates a practical problem: PTAB judges previously devoted substantial time to evaluating each petition's technical merits and legal arguments before reaching institution decisions. Director Squires, while simultaneously managing a multi-billion dollar agency with over 10,000 employees, obviously lacks the available time of a cadre of specialized PTAB judges. This resource constraint, combined with the practice of issuing summary notices without written analysis, leads me to infer that petitions are receiving only cursory review. The no-opinion denial format permits this superficial examination while obscuring whether the Director has meaningfully evaluated the substantive patentability showing or merely applied categorical rules based on Patent Owner discretionary denial requests.