PTAB Discretionary Denial Hits 72%: Rethink Patent Strategy

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:

• Ongoing district court proceedings
• The scheduled trial date
• The age of the patent
• The strength of the unpatentability challenge

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:

• Increased PTAB workload management
• Focus on the appropriate use of office resources
• Avoiding overlap with district court cases

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.

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.

Inter Partes Review (IPR)

• Part of PTAB proceedings
• Can be blocked by discretionary grounds
• Affected by parallel district court litigation
• Higher costs and delays

This creates a tough spot for potential petitioners, as the board might deny the case before even looking at the merits of the petition.

Ex Parte Reexamination (EPR)

• Not affected by PTAB discretionary denial
• Handled directly by the patent office
• Lower cost and simpler process
• Focuses on the background knowledge of a person of ordinary skill

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:

• Filing EPR instead of relying only on IPR
• Avoiding delays caused by projected final written decisions
• Reducing risk from discretionary denial issues
• Managing costs more carefully

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:

• Markman hearings in a district court case
• Involvement of the International Trade Commission
• Use of expert testimony
• Consideration of related patents
• The timing of invalidity contentions in a parallel court case
• The heavy burden of proof required to push a challenge forward

In some cases, exceptional circumstances like national security or public health concerns may also play a role.

Recent significant changes in policy have reshaped the system.

Leaders like Director Coke Morgan Stewart have influenced:

• The new discretionary denial framework
• Updated discretionary denial considerations
• A shift toward a more structured new regime

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:

• More risk when filing IPR
• Less certainty in AIA proceedings
• Greater need for smart planning

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.

1. More Consistent Decision-Making

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.

2. Strong Focus on Parallel Litigation

Cases with parallel litigation are still a major reason for denial.

However, in 2026:

• The PTAB looks more closely at the trial date
• It checks how far the court case has progressed
• It avoids duplicating work already happening in court

This means timing is now very important when filing IPR petitions.

3. Better Use of PTAB Resources

The PTAB continues to improve workload management.

To do this, it:

• Filters out weaker cases earlier
• Focuses on challenges with strong prior art
• Avoids cases that may not reach a final decision

This helps reduce delays and improve efficiency.

4. Stronger Role of Evidence and Prior Art

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.

5. Ongoing Policy Refinements

The system is still evolving. Recent updates and recent decisions show that the PTAB is trying to:

• Balance fairness between court and board cases
• Protect the rights of both the patent owner and the challenger
• Improve the overall patent review process

Many of these updates and changing rules are expected to be officially outlined in the next update to the Trial Practice Guide.

What This Means for You

In 2026, companies must be more strategic than ever.

To reduce risk:

• File strong cases backed by prior art
• Consider timing if patent litigation is already ongoing
• Rethink your patent defense strategy before filing

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:

• Save money
• Avoid delays
• Protect their intellectual property rights

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.

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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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