On March 11, 2026, the USPTO issued a new Director Memorandum introducing additional factors the Director will consider when deciding whether to institute inter partes review (“IPR”) and post‑grant review (“PGR”) proceedings. These considerations emphasize U.S. manufacturing activity, domestic investment, and small‑business petitioners.
Key Takeaways
1. New institution factors tied to U.S. manufacturing
When determining whether to institute an IPR or PGR, the Director will now consider:
- Whether accused products in a parallel proceeding are manufactured in the United States or tied to U.S. manufacturing investments;
- Whether the patent owner’s competing products are U.S.-manufactured.
2. Expanded evaluation of “manufacturing”
The memo directs parties to address not only final assembly location but also:
- Where components are manufactured;
- Whether U.S.‑made products undergo further processing abroad;
- For method claims, which devices used to perform the method should be treated as the relevant “products.”
3. Small‑business petitioners receive special consideration
- The Director will consider whether the petitioner qualifies as a small business that has been sued for infringement, referencing SBA size standards and USPTO small‑entity criteria.
- Petitioners are encouraged to affirmatively identify themselves as small businesses.
4. Applicability
- The policy applies immediately to all IPRs and PGRs in which the patent owner’s discretionary denial brief due date has not yet passed.
Petitioners and patent owners should consider the potential impact of this guidance on their post-grant strategy.
