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The rise of PTAB discretionary denial is changing how companies protect their intellectual property. Today, the PTAB denial rate has reached 72%, especially in cases with parallel district court litigation. Because of this, companies are now changing their patent defense strategy. A big part of this shift is the growing focus on IPR vs EPR.
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PTAB (Patent Trial and Appeal Board) discretionary denial happens when the patent office refuses to review a case. This can happen even if the unpatentability challenge is strong. The board uses the director’s discretion to decide if they should spend time and resources reviewing these challenged patents.
The decision depends on several discretionary factors, such as:
These are part of the discretionary denial framework used by the United States patent system.
The rising PTAB denial rate is linked to changes in how the trademark office manages cases.
Key reasons include:
This overlap is often judged using the Fintiv factors, which look closely at whether early trial dates in a district court make a PTAB review unnecessary. There are also new interim processes and a new bifurcated process that affect how AIA proceedings are handled.
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Recent updates from leadership, including Acting Director Coke Morgan Stewart, have introduced a new discretionary denial framework. This framework changes how discretionary denial arguments are reviewed.
The debate around IPR vs EPR is now more important than ever.
This creates a tough spot for potential petitioners, as the board might deny the case before even looking at the merits of the petition.
Because of these differences, many companies now prefer EPR as part of their patent defense strategy.
Companies are adjusting to the new discretionary denial process by:
Smarter patent portfolio management now requires treating EPR as a core part of your overall patent litigation strategy. This change helps companies protect their patent rights without wasting resources.
Several legal elements influence outcomes in PTAB proceedings:
In some cases, exceptional circumstances like national security or public health concerns may also play a role.
Leaders like Director Coke Morgan Stewart have influenced:
These updates aim to balance fairness, efficiency, and the appropriate use of office resources.
For every patent owner, this shift is important.
High denial rates mean:
Using EPR can help reduce risk, especially when dealing with parallel district court litigation.
Yes. As of 2026, there are clearer and more structured guidelines for PTAB discretionary denial. These updates aim to make decisions more consistent and easier to understand. The patent office has refined how cases are reviewed, especially those involving parallel litigation and IPR petitions.
The PTAB now follows a more defined process when applying discretionary considerations.
This helps companies better predict whether their case will be accepted or denied.
However, in 2026:
This means timing is now very important when filing IPR petitions.
The PTAB continues to improve workload management.
To do this, it:
This helps reduce delays and improve efficiency.
In 2026, strong prior art is even more important.
Cases with clear and solid evidence are more likely to move forward.
Weak or unclear arguments are more likely to face PTAB discretionary denial. Ultimately, the board wants to ensure that the strength of the merits justifies the time spent on the review.
The system is still evolving. Recent updates and recent decisions show that the PTAB is trying to:
Many of these updates and changing rules are expected to be officially outlined in the next update to the Trial Practice Guide.
In 2026, companies must be more strategic than ever.
To reduce risk:
Understanding these updates can help you avoid denial and choose the best path, especially when deciding between IPR vs EPR.
The rise of PTAB discretionary denial is changing the rules.
With the PTAB denial rate at 72%, companies must rethink their approach. The shift from IPR to EPR is not just a trend—it is a smarter patent defense strategy.
Understanding IPR vs EPR helps businesses:
In today’s legal environment, success depends on choosing the right path early.
As PTAB discretionary denial rates reshape how companies approach patent challenges, the need for visibility, credibility, and strategic positioning has never been greater.
Peach State Tech helps founders, startups, and innovators share their stories—so the right investors, partners, and industry leaders are paying attention when it matters most.
If your company is navigating patent litigation, refining its patent defense strategy, or making key decisions like IPR vs EPR, your story deserves to be seen.
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