USPTO Policy Shift: Why Now Is The Ideal Time For Patent Enforcement

The centralization of Inter Partes Review (IPR) institution authority under United States Patent and Trademark Office (USPTO) Director John Squires—effective October 20, 2025—has resulted in a near-zero institution rate for new IPR petitions. This administrative change, coupled with the USPTO's formal policy emphasizing strong patent remedies, systematically removes the IPR process as a viable first-line defense for Accused Infringers (Petitioners). As a result, the current landscape presents a strategically ideal time for Patent Owners (Patentees) to assert and enforce their patent rights with a reduced risk of facing a validity challenge before the Patent Trial and Appeal Board (PTAB).

How Does the New USPTO Policy Redefine Patent Enforcement Strategy?

The USPTO has introduced changes that adjust the balance of risk in patent litigation by prioritizing the enforceability of granted patents, redefining the role of the IPR process established under the Leahy-Smith America Invents Act (AIA).

Administrative Procedures: Centralization and Impact

• Centralized Decision-Making: The Director determines all institution decisions, superseding the prior practice of delegating merits-based review to PTAB panels.
• Issuance of Summary Notices: Routine institution decisions are issued via concise summary notices that generally cite 35 U.S.C. § 314(a), but often lack detailed reasoning, as noted by analysis from Patently-O.
• Institution Rate Impact: This change has corresponded with a near-zero institution rate for recent IPR filings.

Policy Foundation: Prioritizing Robust Patent Remedies

The administrative shift is consistently supported by the USPTO's stated policy position that the effective enforcement of valid patent rights is fundamental to public interest and innovation.

• Patents as Property: In a Joint Public Interest Comment on November 25, 2025 to the U.S. International Trade Commission (ITC), the agencies asserted that public interest is best served when valid U.S. patent rights are fully and effectively enforced. The filing emphasizes that patents are constitutional property rights that drive technological leadership.
• Rejecting Enforcement Barriers: The agencies advised against implementing approaches that could transform public-interest considerations into "preliminary hurdles or de facto barriers to enforcement." This counters attempts to prevent key remedies like injunctions and exclusion orders, asserting they are reliable tools designed by Congress to protect innovation.
• Damages are Inadequate: This perspective was reinforced in the USPTO's June 2025 Joint Statement of Interest filing in Radian Memory Systems v. Samsung, highlighting that patents are unique assets whose value is often not fully captured through monetary damages alone. The agencies stress that weakening remedies undermines the innovation ecosystem, which depends on predictable, enforceable patent rights.

Strategic Guidance: Positioning for Future Patent Disputes

The USPTO's push for stronger remedies, combined with the increasing centralization of IPR authority, gives rise to strategic implications for parties in upcoming patent disputes.

Strategic Implications for Patent Owners (Patentees)

The current environment is strategically favorable for asserting patent rights due to reduced administrative challenge risk.

• Judicial Enforcement Focus: The primary venue for asserting patent rights remains the United States District Court or the ITC, given the minimal risk of collateral validity challenge via IPR.
• Policy Leverage in Litigation: The Joint Public Interest Comment and the Radian Memory Systems Joint Statement of Interest provide explicit governmental policy backing that may be cited to support arguments for strong remedies (injunctions) and to address defenses based on "public interest" arguments.

Strategic Implications for Accused Infringers (Petitioners)

The IPR process is generally not a primary element of the defense strategy due to low institution rates.

• Resource Allocation: The near-zero institution probability for IPR petitions necessitates a focus on allocating resources to preparing a robust defense in the judicial forum.
• Maximizing Judicial Defenses: Validity challenges involving defenses unavailable in IPR (e.g., prior sale, public use, and patent eligibility under 35 U.S.C. § 101) are now principally reserved for the District Court.
• Evaluating Proposed Rules: The implications of the Proposed Rules—including the Mandatory Stipulation Requirement and Parallel Litigation Preclusion—must be assessed when planning the timing and nature of any validity challenge.

Legal Challenge: The Administrative Procedure Act (APA) and Summary Denials

The issuance of institution denials via summary notices without detailed reasoning has generated legal challenges regarding compliance with the Administrative Procedure Act (APA).

The legal confrontation centers on the tension between the APA's requirement that federal agencies provide a reasoned basis for their decisions, and the America Invents Act (AIA) provision that institution decisions are "final and nonappealable" (35 U.S.C. § 314(d)). This AIA provision limits judicial review of the Director's discretionary denial decisions, making it difficult for petitioners to directly challenge a denial on the merits.

Accused Infringers are pursuing legal avenues, including petitions for writs of mandamus at the Court of Appeals for the Federal Circuit, to challenge the practice of issuing denials with minimal explanation.

The core legal question is whether the APA requires the USPTO to provide some minimal articulation of reasoning for administrative action, even when the underlying decision is designated as "final and nonappealable" by statute. The resolution of this question will determine the ultimate sustainability of the summary denial practice.

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