Amicus Curiae Brief — Intel Corporation, et al., Petitioners v. John A. Squires, Under Secretary of Commerce for Intellectual Property and Director, United States Patent and Trademark Office, et al.

Supreme Court briefAug 17, 2026

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No. 26-73

In the Supreme Court of the United States

INTEL CORPORATION,

Petitioner,

JOHN A. SQUIRES, UNDER SECRETARY OF

COMMERCE FOR INTELLECTUAL PROPERTY AND

DIRECTOR OF THE UNITED STATES PATENT AND

TRADEMARK OFFICE,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Federal Circuit

BRIEF OF UNIFIED PATENTS, LLC

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

JENNIFER BISK

Counsel of Record

JONATHAN STROUD

ROSHAN MANSINGHANI

UNIFIED PATENTS, LLC

1015 15TH STREET NW, STE. 629

WASHINGTON, DC 20005

202-379-6470

jbisk@unifiedpatents.com

TABLE OF CONTENTS

Table of Contents......................................................... i

Table of Authorities .................................................... ii

Interest of Amicus Curiae .......................................... 1

Introduction and Summary of Argument.................. 2

Argument .................................................................... 5

I. The question presented is exceptionally

impactful, recurring, and warrants this Court’s

review. ..................................................................... 5

II.

The AIA does not place the PTO’s

institution rules beyond judicial review. ............... 7

Section 314(d) forecloses review only of

ordinary institution disputes, not claims that

the PTO has exceeded the bounds Congress set.8

Section 314(a)’s “may not . . . unless” is a

limit on the PTO’s authority, not a tacit grant of

unbounded discretion. ......................................... 9

III. Shielded by that claimed immunity, the

PTO has rewritten the scheme Congress enacted.

The PTO’s newly minted time-to-trial rule

overrides the actual one-year deadline Congress

fixed in Section 315(b). ...................................... 10

The PTO’s other new bars each displace a

judgment Congress made.................................. 13

IV. The consequences confirm that this Court’s

review is needed now. ........................................... 14

Conclusion ................................................................. 19

TABLE OF AUTHORITIES

Page(s)

Cases

Apple Inc. v. Fintiv, Inc., No. IPR2020-00019, Paper

11 (P.T.A.B. Mar. 20, 2020) ...........................10, 11

Apple Inc. v. Vidal, 63 F.4th 1 (Fed. Cir. 2023) .2, 5, 9

Bowen v. Mich. Acad. of Family Physicians, 476 U.S.

667 (1986) ...............................................................9

Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261 (2016)

.............................................................................4, 8

Fintiv, Inc. v. Apple Inc., No. 1:21-CV-00896-ADA,

2025 WL 2633970 (W.D. Tex. Aug. 15, 2025) .....11

In re Google LLC, No. 2025-144, 2025 WL 3096849

(Fed. Cir. Nov. 6, 2025) ..........................................8

Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015) ....9

Minerva Surgical, Inc. v. Hologic, Inc., 594 U.S. 559

(2021) ....................................................................13

In re Motorola Solutions, Inc., 159 F.4th 30 (Fed. Cir.

2025) ...............................................................5, 8, 9

Mylan Labs. Ltd. v. Janssen Pharm., N.V., 989 F.3d

1375 (Fed. Cir. 2021)......................................2, 5, 9

Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663

(2014) ....................................................................12

In re SAP Am., Inc., Nos. 2025-132, -133, 2025 WL

3096788 (Fed. Cir. Nov. 6, 2025) ...........................8

SAS Inst. Inc. v. Iancu, 584 U.S. 357 (2018) ..........3, 8

SCA Hygiene Prods. Aktiebolag v. First Quality Baby

Prods., LLC, 580 U.S. 328 (2017) ........................12

Thryv, Inc. v. Click-to-Call Techs., LP, 590 U.S. 45

(2020) ......................................................................8

Statutes and Regulations

35 U.S.C. § 311 ..........................................................13

35 U.S.C. § 314(a) ....................................................2, 9

35 U.S.C. § 314(b) ......................................................11

35 U.S.C. § 314(d) ....................................................2, 3

35 U.S.C. § 315(b) ..................................................3, 10

35 U.S.C. § 315(c) ........................................................9

35 U.S.C. § 315(e) ......................................................13

35 U.S.C. § 316(a)(11)................................................11

37 C.F.R. § 42.107(b) .................................................11

Revision to Rules of Practice Before the Patent Trial

and Appeal Board, 90 Fed. Reg. 48,335 (proposed

Oct. 17, 2025)..................................................13, 14

Miscellaneous

157 Cong. Rec. S5429 (daily ed. Sept. 8, 2011) ........10

Brian J. Love, An Empirical Study of Patent

Litigation Timing: Could a Patent Term

Reduction Decimate Trolls Without Harming

Innovators?, 161 U. Pa. L. Rev. 1309 (2013) .......18

Docket Navigator,

https://compass.docketnavigator.com (last visited

Aug. 13, 2026) .......................................................12

iii

Herman Melville, Bartleby, the Scrivener: A Story of

Wall Street (1853) ...................................................7

H.R. Rep. No. 112-98 (2011)......................................16

Lauren Cohen et al., Patent Trolls: Evidence from

Targeted Firms, 65 Mgmt. Sci. 5461 (2019)........18

Order Governing Proceedings—Patent Cases (OGP

Version 1, Austin) (W.D. Tex. Mar. 5, 2025).......11

Patent Model Docket Control Order, U.S. Dist. Ct.

E.D. Tex. (rev. Dec. 14, 2022) ..............................12

The Perryman Group, The Potential Economic

Benefits of Recent Reductions in Discretionary

Denial of Inter Partes Review Based on Criteria

Such as the NHK-Fintiv Rules (Mar. 2023) ........16

Petition for Writ of Certiorari, Fed. Express Corp. v.

Qualcomm Inc., No. 26-170 (U.S. July 28, 2026) .6

Petition for Writ of Certiorari, Google LLC v.

VirtaMove, Corp., No. 25-1230 (U.S. Apr. 27,

2026) .......................................................................5

Petition for Writ of Certiorari, Kahoot! AS v.

Interstellar Inc. (U.S. July 24, 2026) .....................6

Petition for Writ of Certiorari, Tesla, Inc. v. Granite

Vehicle Ventures LLC, No. 26-136 (U.S. July 27,

2026) .......................................................................6

S. Rep. No. 110-259 (2008) ........................................16

Unified Patents, Patent Dispute Report: First Half

2026 (July 9, 2026) .................................6, 7, 15, 17

Unified Patents, The Public Has Spoken—Again

(Dec. 18, 2025) ......................................................14

U.S. Gov’t Accountability Office, GAO-25-107218,

Intellectual Property: Patent Office Should

Strengthen Its Efforts to Address Persistent

Examination and Quality Challenges (2025) .....14

INTEREST OF AMICUS CURIAE1

Unified Patents, LLC (“Unified”) is a

membership organization that seeks to improve

patent quality and deter unsubstantiated or invalid

patent assertions in defined technology sectors. In

particular, Unified is dedicated to deterring nonpracticing entities (“NPEs”), particularly patent

assertion entities and litigation investment entities,

from extracting nuisance settlements from operating

companies based on patents that are likely invalid.

To that end, Unified provides a variety of

services to its members, including analytics, prior art,

invalidity

contests,

patentability

analysis,

administrative patent review, amicus briefs,

economic surveys, and standard essential patent

essentiality studies. In addition, Unified monitors

patent ownership data and secondary-market patent

sales. Unified also challenges patents it believes are

unpatentable or invalid. This has included challenges

in inter partes review (“IPR”).

IPR is a vital tool for ensuring the integrity of

the patent system and stopping the assertion of poorquality patents. As an organization dedicated to those

purposes, Unified urges this Court to grant review to

preserve IPR’s crucial functions.

1 No counsel for a party authored this brief in whole or in part,

and no counsel, party, or person other than amicus curiae and

its counsel made a monetary contribution intended to fund the

preparation or submission of the brief. Notice of the intent to file

this brief was provided to all parties’ counsel at least ten days

prior to filing.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This case presents a question of vital

importance to the United States patent system:

whether the Patent and Trademark Office’s rules for

governing access to IPR remain subject to judicial

review. The Federal Circuit has held that they are

not—reading 35 U.S.C. § 314(a) to give the Director

unlimited discretion to deny institution for any

reason he chooses, see Mylan Labs. Ltd. v. Janssen

Pharm., N.V., 989 F.3d 1375, 1382 (Fed. Cir. 2021)

(the Director is “never compelled” to institute); Apple

Inc. v. Vidal, 63 F.4th 1, 6-7 (Fed. Cir. 2023), and 35

U.S.C. § 314(d) to shield that discretion, and the

substance of rules built on it, from review by any court

even under allegations of APA violations, see Pet.

App. 72a-73a. Freed of any check, the PTO has used

that reading of the governing statute to deny the vast

majority of would-be filers access to IPR contrary to

the scope of access Congress authorized. Indeed, IPR

petitions have dropped to an all-time low—from over

a thousand annual filings to dozens.

Neither provision compels such an extreme,

unprecedented reading that shields agency action

from review under the APA. Section 314(d) makes

nonappealable only the Director’s “determination . . .

whether to institute,” which this Court construed as

only barring review of ordinary disputes about how an

institution statute applies. Importantly, neither

Congress nor this Court created a force field around

any policy related to institution. This Court said as

much in SAS. There it rejected the agency's bid for

broad, policy-driven discretion over institution,

holding that where the institution statutes speak

plainly, the Director must follow their commands “as

written” rather than substitute the policy he “may

prefer.” SAS Inst. Inc. v. Iancu, 584 U.S. 357, 363

(2018). And Section 314(a)’s command that the

Director “may not” institute “unless” a petition meets

the statutory threshold fixes a floor below which he

cannot institute; it is not a grant of standardless

discretion to deny institution for any reason.

The overreach before this Court is the PTO’s

timing rule—denying review when a parallel districtcourt trial is likely to finish first, regardless of the

petition’s merits. Congress did not leave the timing of

IPR to the PTO’s discretion. It gave an accused

infringer a fixed window—one year from service of an

infringement complaint—to seek review, and it chose

that period deliberately, after weighing and rejecting

a shorter one. See 35 U.S.C. § 315(b). The PTO has

nonetheless layered its own timing requirement on

top of the statute, insisting that a petition be filed

early enough for review to conclude before the

scheduled trial date of a parallel district court. In the

districts where most infringement suits are brought,

that requirement can shrink the statutory year to a

month or two—and where trial is set inside eighteen

months, it leaves no time to file at all. An agency

deadline that consumes the congressional one is not

an interpretation of § 315(b); it is a rewrite.

Relying on the Federal Circuit’s grant of

immunity from review of 35 U.S.C. § 314(d), the PTO

has recently gone even further, announcing that

patents beyond a certain age acquire “settled

expectations” against challenge and extending

estoppel to parties who had no part in an earlier

proceeding. Each measure displaces a judgment

Congress made about how patent validity is to be

tested, and each rests on the assumption that no court

will ever require the PTO to justify its decision. And

the PTO has moved to guarantee that none will.

Having failed to secure these restrictions through

notice-and-comment

rulemaking,

where

the

overwhelming majority of commenters opposed them,

it now imposes them by edict, denying institution

without any explanation at all.

Operating companies, including many of

Unified’s members, bear the consequences. These

companies drive innovation and sell real products, yet

they are sued by non-practicing entities on the very

patents IPR was designed to test—patents that issue

through a non-adversarial, resource-constrained

process in which every participant is pushed toward

allowance. When those companies turn to the review

Congress promised, they find it foreclosed—not on the

merits, but because the PTO has rewritten rules the

statute does not permit it to rewrite. The expert,

expedited check Congress built into the system is

being withdrawn precisely where it is needed most.

See Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261,

272 (2016).

By transforming a narrow bar on reviewing

individual institution decisions into a grant of

unbounded, unreviewable power, the Federal Circuit

has upended the system Congress designed—and

over the past year, as the PTO has pressed that power

further, the damage has only deepened. This Court’s

review is urgently needed.

ARGUMENT

The question presented is exceptionally

impactful, recurring, and warrants this Court’s

review.

This petition asks a fundamental question

about administrative power: must an agency follow

Congress, or can it ignore it?

In other words, must the Patent and

Trademark Office follow the statute Congress wrote

when it created IPR, or may it unilaterally set that

statute aside when it prefers a different policy? The

Federal Circuit has dodged the question, finding that

the PTO’s institution decisions—and the rules by

which it makes them—lie effectively beyond judicial

review. See In re Motorola Solutions, Inc., 159 F.4th

30, 38 (Fed. Cir. 2025); Apple Inc. v. Vidal, 63 F.4th 1,

6-7 (Fed. Cir. 2023); Mylan Labs. Ltd. v. Janssen

Pharm., N.V., 989 F.3d 1375, 1381-83 (Fed. Cir.

2021). Freed of anyone to account to, the PTO has

stopped both implementing the statute and

explaining itself. Why should it? Given the reviewing

court’s abdication, the agency’s actions proceed

without consequence or correction, absent this Court’s

intervention.

The question recurs constantly. The Federal

Circuit has confronted a steady stream of mandamus

petitions challenging the Office's discretionary-denial

regime. Indeed, the same reviewability question is

already pending before this Court in separate

petitions challenging different discretionary-denial

rules, all filed in remarkably short order following

last year’s policy changes. See, e.g., Pet. for Writ of

Certiorari, Google LLC v. VirtaMove, Corp., No. 255

1230 (U.S. Apr. 27, 2026); Pet. for Writ of Certiorari,

Kahoot! AS v. Interstellar Inc. (U.S. July 24, 2026);

Pet. for Writ of Certiorari, Tesla, Inc. v. Granite

Vehicle Ventures LLC, No. 26-136 (U.S. July 27,

2026); Pet. for Writ of Certiorari, Fed. Express Corp.

v. Qualcomm Inc., No. 26-170 (U.S. July 28, 2026).

This Court can expect more. Whether the PTO’s

institution rules are subject to judicial check is

therefore a question of exceptional, timely, and

lasting importance that only this Court can resolve.

The

system-wide

effects

are

already

remarkably stark. Users vote with their feet—

monthly IPR petitions have fallen from 131 in

January 2025 to just 22 in June 2026, quarterly

filings reached an all-time low of 57 in the second

quarter of 2026, and the institution rate has collapsed

from roughly 80% in early 2025 to the low twenties.

Put another way, the agency is on pace to go from

thousands of annual filings to dozens—due to the

agency’s draconian changes. They have effectively

driven validity challenges out of the Board altogether

and into ex parte reexamination, which now accounts

for nearly three-quarters (74.7%) of all post-grant

filings.2

2 Unified Patents, Patent Dispute Report: First Half 2026 (July

9, 2026). Except as otherwise noted, the patent-dispute statistics

cited in this brief are drawn from this report, which is available

https://www.unifiedpatents.com/insights/2026/7/9/patentdispute-report-first-half-2026.

IPR filings (bars) and monthly institution grant rate (line),

January 2025–June 2026. Source: Unified Patents, Patent

Dispute Report: First Half 2026.

One wonders why Congress would bother

passing legislation at all if agencies are then free to

adopt policies that ignore it. Congress asked the

agency to implement its laws. Like Melville’s

Bartleby, the agency has said, “I would prefer not to.”3

II.

The AIA does not place the PTO’s

institution rules beyond judicial review.

The decision below rests on two errors of

statutory interpretation, either of which warrants

this Court’s correction. Neither Section 314(d) nor

Section 314(a) gives the PTO the unreviewable

authority the Federal Circuit perceived. Those errors

are hardly harmless—the Federal Circuit has already

invoked that immunity to shield the PTO’s

discretionary institution authority from review—

denying many mandamus petitions on the subject in

3 Herman Melville, Bartleby, the Scrivener: A Story of Wall Street

(1853).

rapid succession, three of them on a single day. See In

re Motorola Solutions, Inc., 159 F.4th 30, 38 (Fed. Cir.

2025); In re Google LLC, No. 2025-144, 2025 WL

3096849 (Fed. Cir. Nov. 6, 2025); In re SAP Am., Inc.,

Nos. 2025-132, -133, 2025 WL 3096788 (Fed. Cir. Nov.

6, 2025). With that free hand, the PTO now denies

institution through one-line bulk summary notices

rather than any sort of reasoned opinions—so that,

absent this Court’s review, its rules escape not only

judicial scrutiny, but even basic explanation.

Section 314(d) forecloses review

only of ordinary institution disputes, not

claims that the PTO has exceeded the

bounds Congress set.

To be sure, in section 314(d) Congress made

“final

and

nonappealable”

the

Director’s

“determination . . . whether to institute an inter

partes review.” This Court has twice explained that

the provision bars review only of “‘ordinary dispute[s]

about the application of’ an institution-related

statute.” Thryv, Inc. v. Click-to-Call Techs., LP, 590

U.S. 45, 54 (2020) (quoting Cuozzo Speed Techs., LLC

v. Lee, 579 U.S. 261, 271 (2016)). It does not immunize

the PTO when it exceeds its statutory authority, for

“[i]f a party believes the Patent Office has engaged in

‘shenanigans’ by exceeding its statutory bounds,

judicial review remains available.” SAS, 584 U.S. at

371. A challenge to a generally applicable rule that

governs institution—as distinct from a quarrel with a

single institution decision—is exactly the kind of

claim Section 314(d) leaves open.

The Federal Circuit’s contrary holding places

the PTO beyond the ordinary limits that bind every

other agency. Under that Court’s decisions, the PTO

may adopt institution criteria that are contrary to

statute, that are not reasonably explained, that

reverse position without explanation, and that apply

retroactively—all without any court reviewing the

substance of the PTO’s authority to act. See In re

Motorola Solutions, Inc., 159 F.4th 30, 38 (Fed. Cir.

2025); Apple Inc. v. Vidal, 63 F.4th 1, 11-13 (Fed. Cir.

2023); Mylan Labs. Ltd. v. Janssen Pharm., N.V., 989

F.3d 1375, 1381-83 (Fed. Cir. 2021). But judicial

review of agency action is the rule, and

unreviewability is a narrow exception that must be

shown by clear and convincing evidence. See Mach

Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015);

Bowen v. Mich. Acad. of Family Physicians, 476 U.S.

667, 670-71 (1986). Nothing in Section 314(d) supplies

it.

Section 314(a)’s “may not . . .

unless” is a limit on the PTO’s authority,

not a tacit grant of unbounded discretion.

The second error compounds the first. Section

314(a) provides only that the Director “may not

authorize an inter partes review to be instituted

unless” the petition shows a reasonable likelihood of

success. 35 U.S.C. § 314(a). That is a limit on the

PTO’s authority—a floor below which it may not

institute—not a grant of boundless discretion to deny

institution for any reason the PTO invents. The

agency has instead read it as a loophole granting

complete discretion and driven a train through it.

This despite the fact that the very next section of the

statute

actually

does

affirmatively

grant

discretion— “the Director, in his or her discretion,

may” grant joinder. 35 U.S.C. § 315(c). Reading a

negative command (may not) as an affirmative

delegation of unlimited power has inverted the

statute, and it supplied the premise for every extrastatutory rule that has followed. If such unilateral

policy changes that purposefully rewrite the statute

don’t qualify as shenanigans, what would?

III. Shielded by that claimed immunity, the

PTO has rewritten the scheme Congress

enacted.

None of this was accidental. Treating its

institution rules as beyond review, the PTO has not

merely applied the America Invents Act—it has

rewritten it, grafting on requirements that appear

nowhere in the statute and that operate to cut off

access to review Congress created. The rule at issue

here is the clearest example. It is not the only one.

The PTO’s newly minted time-totrial rule overrides the actual one-year

deadline Congress fixed in Section 315(b).

Congress did not leave the timing of IPRs to the

PTO’s discretion. It gave an accused infringer a fixed

window—one year from service of a complaint

alleging infringement—to seek review, and it chose

that period deliberately, after weighing and rejecting

a shorter one. 35 U.S.C. § 315(b); see 157 Cong. Rec.

S5429 (daily ed. Sept. 8, 2011). The PTO has

nonetheless layered its own timing requirement on

top of the statute, denying petitions unless they are

filed early enough for the review to conclude before a

parallel district court’s scheduled trial date. See Apple

Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11, at 5-6

(P.T.A.B. Mar. 20, 2020).4 For an accused infringer,

that requirement can pare the one-year window down

to a few months. In the fastest jurisdictions, it can

foreclose review before the year has even run.

The arithmetic is straightforward. Once a

petition is filed, the Board takes roughly six months

to reach an institution decision. See 35 U.S.C. §

314(b); 37 C.F.R. § 42.107(b). If it institutes, the final

written decision is not due for another twelve months.

Id. § 316(a)(11). From filing to decision, then, an IPR

runs about eighteen months. The time-to-trial rule

denies institution whenever a parallel trial is

scheduled before the projected decision date. See

Fintiv, Paper 11, at 5-6.

That rule bites hardest where infringement

suits concentrate, because those courts set trial dates

a review cannot beat. In the Western District of

Texas, the standing order for patent cases fixes trial

roughly seventeen months after the casemanagement conference—twenty-three weeks to the

Markman hearing, then fifty-two weeks to trial. See

Order Governing Proceedings—Patent Cases (OGP

Version 1, Austin) app. A (“Exemplary Schedule”), at

13-15 (W.D. Tex. Mar. 5, 2025) (Albright, J.). The

Eastern District of Texas is no slower. There, the

court fixes the trial date at the scheduling conference

and ties every other deadline to it, so trial is set well

4 As discussed in Intel’s Brief, these scheduled trial dates are

often illusory. Pet. 9-10. For example, in the Fintiv case itself, a

trial was never held even though the case is still pending more

than six years from the Board’s decision. See Fintiv, Inc. v. Apple

Inc., No. 1:21-CV-00896-ADA, 2025 WL 2633970, at *1 (W.D.

Tex. Aug. 15, 2025) (granting Summary Judgment to Apple,

appeal pending at the Federal Circuit, docket No. 25-2104).

within the review’s projected timeline. See Patent

Model Docket Control Order, U.S. Dist. Ct. E.D. Tex.

(rev. Dec. 14, 2022). A defendant sued in either

district cannot use the year Congress gave it. To keep

the Board’s projected decision ahead of the scheduled

trial, it must petition within the first month or two

after being served. The twelve-month window

Congress fixed collapses to a fraction of that. And

where trial is set at or inside eighteen months, no

petition filed within the statutory year can be decided

before trial. The rule forecloses review before the year

has even run. And it does so on a false premise. The

scheduled dates the Board credits are optimistic.

Actual time to trial in these districts runs even

longer—a median of 24 months in the Eastern

District of Texas and 27 months in the Western.

Docket Navigator, https://compass.docketnavigator

.com (running Time to Trial for Court: Texas Western

District/Texas Eastern District; Trial Date: 2008-0101-2026-08-13; Excluding Outliers) (last visited Aug.

13, 2026). The Board thus denies review to defer to a

trial that, on average, will not occur until long after

the review would have concluded.

A deadline the agency contracts at its own

discretion is no longer the deadline Congress enacted.

When Congress sets a deadline, that deadline

controls, and an agency may not supplement it with a

shorter one of its own making. Cf. SCA Hygiene Prods.

Aktiebolag v. First Quality Baby Prods., LLC, 580

U.S. 328, 334-35 (2017); Petrella v. Metro-GoldwynMayer, Inc., 572 U.S. 663, 667 (2014). An agency

deadline that consumes the congressional one cannot

be squared with the statute Congress enacted or with

the ordinary tools courts use to read it. The PTO has

moved to entrench that rewrite. Its October 2025

proposed rules would make denial mandatory

whenever a parallel proceeding is scheduled to resolve

validity first. Revision to Rules of Practice Before the

Patent Trial and Appeal Board, 90 Fed. Reg. 48,335,

48,341 (proposed Oct. 17, 2025). And the requirement

bites hardest exactly where infringement suits

concentrate—the Eastern and Western Districts of

Texas together account for roughly 37% of all patent

filings, and the Eastern District of Texas alone

accounts for 46.6% of suits brought by non-practicing

entities.

The PTO’s other new bars each

displace a judgment Congress made.

Invoking the same claimed immunity, the PTO

has gone further still. It has announced that patents

beyond a certain age acquire “settled expectations”

against challenge—despite Congress’s deliberate

decision to impose no maximum patent age, see 35

U.S.C. § 311; it has extended estoppel to parties who

took no part in an earlier proceeding, far beyond the

statute’s estoppel and privity limits, see 35 U.S.C. §

315(e); and it has revived assignor estoppel, a defense

this Court recently confined, see Minerva Surgical,

Inc. v. Hologic, Inc., 594 U.S. 559 (2021). Each

measure displaces a judgment Congress made about

how patent validity is to be tested, and each depends

on the same assumption—that no court will ever

require the PTO to justify it.

The PTO has pressed these bars further still.

Its October 2025 proposed rules would require denial

whenever any claim was previously upheld by the

PTO, ITC, or a court, regardless of the parties or prior

art involved, and would force a petitioner to abandon

all Section 102 and Section 103 defenses in every

other forum as the price of review. 90 Fed. Reg. at

48,341.

Nor does the PTO act with any public mandate.

When it proposed to codify these restrictions in

October 2025, more than 11,100 comments poured in,

and 97% of them opposed the proposal—an almost

exact repeat of 2023, when more than 95% of a record

14,500-plus comments opposed a materially similar

proposal that the PTO ultimately abandoned. Unified

Patents, The Public Has Spoken—Again (Dec. 18,

2025).5 Having failed to secure these restrictions

through rulemaking, the PTO has simply imposed

them by unexplained adjudication, over the objection

of the manufacturers, technology companies, and

retailers that depend on IPR.

IV.

The consequences confirm that this

Court’s review is needed now.

The practical consequences of the PTO’s course

are neither abstract nor speculative; they have been

swift and severe. Until recently, IPR did what

Congress designed it to do—provide an expert,

efficient check on patents that should never have

issued. That such patents issue at all reflects a

recognized weakness in examination itself. The

Government Accountability Office has found that

patent examiners work under significant time and

resource constraints in a system that rewards the

quantity of decisions over their quality. See U.S. Gov’t

Accountability Office, GAO-25-107218, Intellectual

Property: Patent Office Should Strengthen Its Efforts

5 https://www.unifiedpatents.com/insights/2025/12/17/the-

public-has-spoken-again.

to Address Persistent Examination and Quality

Challenges 8 (2025).

The

PTO’s

discretionary-denial

regime

reversed IPR’s check on invalid patents almost

overnight. The monthly institution grant rate, which

stood at 81.8% in January 2025, fell to an all-time low

of 19.4% by August 2025 and was still just 21.5% in

January 2026. Filings fell in lockstep. Monthly

petitions dropped from 131 in January 2025 to 22 in

June 2026, and quarterly petitions reached an alltime low of 57 in the second quarter of 2026—a 72.5%

decline from the first half of 2025.

Pending PTAB petitions (line) and procedural denials (bars),

September 2012–June 2026. Source: Unified Patents, Patent

Dispute Report: First Half 2026.

That collapse does not reflect a sudden dearth

of meritorious challenges; it reflects a flight from a

forum that no longer offers reliable review. Nonmerits denials reached a record 607 in 2025, and in

the first quarter of 2026, they were more than 620%

higher than the year before. Would-be

petitioners have responded by abandoning the IPR

process. Requests for ex parte reexamination reached

an all-time quarterly high and now account for nearly

three-quarters (74.7%) of all post-grant filings—an

almost exact inversion of the position one year earlier,

when IPR made up 72.9%.

The loss is a serious one. Congress created IPR

to furnish a “quick, inexpensive, and reliable

alternative to district court litigation” for testing the

validity of wrongly issued patents. S. Rep. No. 110259, at 20 (2008); see H.R. Rep. No. 112-98, at 39-40,

48 (2011). By rewriting the terms of that review, the

PTO has made the alternative unavailable exactly

when it is needed most.

That loss is not only institutional; it is also

economic and measurable. When the PTO briefly

reined in Fintiv-based discretionary denials in 2022,

an analysis by The Perryman Group projected that

curtailing those denials would add roughly $482

million in gross product and some 2,000 job-years of

employment to the United States economy over ten

years, with manufacturers—the operating companies

most often sued on the patents IPR was meant to

test—capturing the largest share, about $230 million

in gross product and 758 job-years. The study

expressly warned that reinstating or expanding

Fintiv-style denials “would reduce or potentially even

eliminate these effects.” The PTO has since done

exactly that, and far more sweepingly—surrendering

those gains and reimposing on the economy the very

costs an efficient review process had removed. The

Perryman Group, The Potential Economic Benefits of

Recent Reductions in Discretionary Denial of Inter

Partes Review Based on Criteria Such as the NHKFintiv Rules ii, 5-7 (Mar. 2023).

The burden, moreover, falls unevenly. Because

the PTO’s new bars apply most forcefully to patents

asserted in parallel litigation and to older patents,

they shield the patents most often wielded by nonpracticing entities. The institution data bear this out.

On a trailing twelve-month basis, petitions against

NPE-owned patents were instituted just 27.2% of the

time, compared with 41.4% for operating-company

patents—making it harder to obtain review of a

patent held by a non-practicing entity than of a patent

owned by a company that actually makes and sells

products.

PTAB institution rate against non-practicing entity (“NPE”)and operating-company (“OpCos”)-owned patents, twelve-month

sliding window, 2016–June 2026. Source: Unified Patents,

Patent Dispute Report: First Half 2026.

That is no accident. NPEs often assert old

patents. Empirical evidence shows that on average,

“NPEs do not obtain patents until the [twenty-year]

patent term is half-spent and hold their patents for

several years more before filing suit, perhaps while

waiting for emerging industries to mature.” Brian J.

Love, An Empirical Study of Patent Litigation

Timing: Could a Patent Term Reduction Decimate

Trolls Without Harming Innovators?, 161 U. Pa. L.

Rev. 1309, 1334 (2013). Operating companies, by

contrast, assert patents earlier. Ibid.; see also Lauren

Cohen et al., Patent Trolls: Evidence from Targeted

Firms, 65 Mgmt. Sci. 5461, 5470 (2019) (“NPEasserted patents are significantly older than

[practicing entity]-asserted patents.”). Moreover,

“NPE-asserted patents are the overwhelmingly

dominant source of patent litigation in the final years

of the patent term.” Love, supra, at 1340. And 92% of

those late-term suits are filed by “patent acquisition

firms, firms holding the IP remnants of failed

companies, and inventor-affiliated licensing firms.”

Ibid. The PTO’s age-based bars thus do not fall

evenly. By shielding older patents from review, they

shield the patents most likely to be asserted in

abusive NPE litigation.

And it is that litigation the PTO’s regime leaves

unchecked. Non-practicing entities filed 88.3% of the

high-tech patent suits brought in district court in the

first half of 2026, and six of the ten most-frequently

challenged patent owners at the Board were nonpracticing entities. Amicus’s members bear the

consequences directly. They are operating companies

that drive innovation and sell real products, and they

are sued by non-practicing entities on the very

patents IPR was designed to test. When these

companies seek the review Congress promised, they

are told it is unavailable—not because their petitions

are weak, and not because they fail to satisfy the

statute, but because the PTO has rewritten the rules

in a manner the governing statute does not permit.

That is the systemic harm the America Invents Act

was enacted to prevent, and it is reason enough to

grant review.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted.