On October 17, Director Squires announced that he will assume responsibility for all post‑grant trial institution decisions. When the Director determines that a petition warrants institution, the matter will be assigned to a three‑judge APJ panel to conduct the trial over the following year.
In an open letter accompanying a Notice of updated procedures, Director Squires identified several concerns with the prior panel‑based institution model. First, he highlighted the perception of self‑incentivization: although the Board has performed admirably, performance metrics and workload structures created the appearance that institution decisions could influence docket size, credit, and resource allocation—raising concerns that the Board might be “filling its own docket.” Even if unfounded, that perception undermines public confidence in the integrity of the Office’s adjudicatory functions for IPRs. Second, he noted that the bifurcated process for discretionary considerations—useful and necessary when adopted—was never intended to be permanent. The preliminary review prior to Board referral appears to have contributed to extraordinarily high institution rates for referred cases, at one point exceeding 95 percent. Third, he emphasized statutory fidelity and administrative clarity: Congress expressly assigns institution authority to the Director, not to the Board as delegee. Restoring the institution function to the Director realigns procedures with the AIA’s text and intent and centralizes accountability where the statute places it.
Under the new procedures, the Director will decide whether to institute based on discretionary considerations, the merits, and other non‑discretionary factors. If at least one ground is found sufficient for at least one challenged claim, the Director will issue a summary notice granting institution.
The move to summary institution decisions marks a significant departure from PTAB practice since post‑grant trials began in September 2012. Historically, institution was delegated to the same APJ panel that would later adjudicate the trial, and institution decisions were extensive, often spanning dozens of pages and addressing dispositive issues in detail. That structure has been criticized for potentially entrenching early views throughout the proceeding.
Going forward, the Director will determine whether a trial proceeds and will issue a concise summary identifying the basis for institution. APJ panels will then conduct the trial, separate from the institution determination.
