Patent Challenge Filings Plummet as USPTO Leadership Reshapes Review Process

The volume of petitions submitted to challenge patents through the Patent Trial and Appeal Board has experienced a dramatic downturn. This decline is troubling because the PTAB serves as a critical mechanism for weeding out inferior software patents that might otherwise be weaponized in litigation against individuals and organizations.

The deterioration stems not from an improvement in patent quality, but rather from decisions by USPTO leadership to reject legitimate patent challenges based on factors unrelated to their substantive merit. The mechanism has grown so unpredictable that potential challengers have largely abandoned the effort.

Inter partes review, or IPR, enables parties to contest patents through the Patent Office rather than pursuing costly federal court battles. This administrative pathway represents one of the most effective tools for eliminating defective patents from circulation.

During the third quarter of 2026—July through September—the PTAB received just 97 IPR petitions, a sharp decline from 327 during the same period in 2025. In September 2026 alone, only 37 petitions were filed, compared with 129 in December 2024, the final full month before the current USPTO leadership began restructuring how the Board evaluates patent disputes.

The implications extend far beyond patent law specialists. The Electronic Frontier Foundation has challenged problematic patents because numerous software and internet patents stake claims to fundamental technologies underlying digital expression—email transmission, online advertising, web publishing. When defective patents escape scrutiny, the consequences ripple across everyone developing new software and creating new technologies.

The EFF has championed IPR since its introduction more than a decade ago, recognizing it as a speedier and more economical alternative to correcting the Patent Office's inevitable mistakes. Congress established IPRs precisely because the Patent Office errs. Resolving such errors through district court proceedings imposes extraordinary financial burdens. Without a robust administrative review mechanism, defective patents remain potent instruments for patent trolls and others seeking to coerce settlements from companies that may have done nothing improper.

The current USPTO leadership is now dismantling this protective framework.

Institution Rates and Petition Volume Both Declining

Since Congress enacted the IPR process in 2012, the PTAB has retained discretion over which petitions warrant examination. However, current institution rates fall substantially below their historical norms.

From fiscal years 2022 through 2024, the PTAB instituted between 66% and 68% of IPR petitions. By fiscal year 2026, which ended in September 2026, the institution rate dropped to 41%. Institution itself represents merely the initial phase of an IPR—it signals that the PTAB has consented to review the challenge, not that the challenger will prevail or that the patent will be struck down.

This decline in institution rates illuminates why fewer petitions are being submitted initially. Drafting an IPR petition demands considerable time and financial resources. Although less expensive than federal court proceedings, it remains a demanding administrative undertaking. Prospective challengers typically must conduct prior art searches, engage technical specialists, and construct intricate technical and legal arguments demonstrating why the patent should never have been issued.

Historically, companies invested in IPRs because they could rely on a consistent process. Petitions satisfying statutory requirements generally possessed a reasonable likelihood of receiving a hearing and a decision on the substance. However, the USPTO has erected barriers to petition acceptance and is dismissing cases for reasons disconnected from the challenges' substantive quality. Confronted with these unfavorable conditions, numerous prospective challengers are forgoing filing altogether.

Director Authority to Overturn Instituted Cases Creates New Uncertainty

When the PTAB chooses to hear an IPR matter, the petition has been "instituted"—yet this has never guaranteed the petitioner's success. It signals that the PTAB has concluded the challenge merits complete substantive review, and the participants could anticipate the case proceeding toward a final written decision. Under present USPTO leadership, this assurance has evaporated. The Director has repeatedly overturned PTAB institution decisions.

USPTO Director John Squires has overturned at least 29 decisions approving institution of IPR proceedings, subsequently rejecting the petitions and halting those proceedings before a final written decision. This encompasses cases that PTAB judges had already agreed to examine, as well as proceedings that Squires himself had previously permitted to advance. Such retroactive intervention is without precedent.

In certain instances, the parties had already expended substantial time and resources in PTAB proceedings before the case was terminated based on fresh reasoning introduced by the Director's office after institution.

In Revvo Technologies v. Cerebrum Sensor Technologies, the Director vacated an institution decision and sent the case back to the Board. The Board subsequently instituted review again, but the Director reversed that decision. Employing a novel rationale, the Director determined that the petition contained inconsistencies between claim construction arguments presented to the PTAB and those advanced in district court. That ruling has since become a justification for terminating numerous other instituted proceedings.

This introduces yet another source of uncertainty for those seeking to challenge defective patents. Clearing the hurdle of an institution decision has become substantially more difficult than previously—and now, even clearing that hurdle offers no assurance that the PTAB will adjudicate the challenge. Predictability was fundamental to making IPRs effective.

Congress Designed the PTAB To Circumvent Expensive Court Battles

Congress established IPRs partly because contesting a dubious patent in federal court entails enormous expense and uncertainty. Patent examiners operate under severe time limitations, and inevitably some patents that should never have been approved will issue. Not every patent disagreement necessitates years of costly district court proceedings. Congress recognized this reality and created an administrative alternative, staffed by specialists equipped to remedy such errors.

The public has benefited from this system. Since 2012, it has contributed to the invalidation of thousands of patent claims that should never have been granted. The IPR mechanism has shielded startups, software engineers, nonprofits, and smaller enterprises from the prohibitive litigation expenses they would otherwise face simply for creating products or delivering services built on standard internet technologies.

The EFF backs a balanced IPR system because challenging spurious patents that never should have been approved ought to be more straightforward. Litigation costs themselves can function as a weapon, and inferior patents harm not only large tech corporations. Patent trolls routinely pursue small companies and independent creators, and have targeted podcasters, retailers, coffee shops, and nonprofits. These entities possess neither the financial capacity nor the inclination to commit years to federal court disputes over potentially unenforceable patents. IPR furnishes an opportunity to contest those patents before litigation expenses spiral.

Diminishing the IPR system makes challenging defective patents substantially more difficult and expensive.

This Trajectory Should Not Become Standard Practice

Proponents of the current direction contend that reduced institution rates signal improved equilibrium in patent policy. Yet PTAB institution rates have nosedived from 68% to 41% within two years—approaching a 40% reduction. IPR petition submissions have hit record lows. Moreover, proceedings that have already been instituted can now be terminated months afterward, without any substantive ruling.

These shifts communicate a discouraging signal to prospective PTAB users: the effort is futile. The PTAB need not institute every petition. However, it must deliver a process that is transparent, reliable, and equitable. Presently, faith in the system is deteriorating.

Should companies, individuals, and nonprofits determine that IPRs are not a worthwhile pursuit, the fallout will transcend the PTAB. Additional defective patents that never should have survived will persist, and patent trolls will deploy them. This translates to more parties confronting expensive district court litigation or capitulating to settlements inflated by litigation costs.

This outcome contradicts Congress's original intent in establishing IPRs. It should not become the PTAB's standard operating procedure.