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, ET AL.,

Petitioners,

v.

JOHN A. SQUIRES, UNDER SECRETARY OF

COMMERCE FOR INTELLECTUAL PROPERTY AND

DIRECTOR OF THE UNITED STATES PATENT AND

TRADEMARK OFFICE,

Respondent.

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Federal Circuit

BRIEF OF THE PTAB BAR ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF

GRANTING OF CERTIORARI

Brenton R. Babcock

COUNSEL OF RECORD

Yang Wang

PTAB Bar Association

1660 International Drive

Suite 600

McLean, VA 22102

(703) 570-8192

amicusbrief@ptabbar.org

i

QUESTION PRESENTED

1. Whether 35 U.S.C. § 314(d), which bars judicial

review of “[t]he determination . . . whether to institute

an inter partes review,” applies even when no

institution decision is challenged to preclude review of

USPTO rules that set standards governing institution

decisions, particularly when those rules are based on

a misinterpretation of § 314(a) to supposedly confer

unlimited discretion on the Director to deny

institution for any reason.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ................................. i

TABLE OF AUTHORITIES .................................... iv

IDENTITY AND INTEREST OF

AMICUS CURIAE .......................................... 1

SUMMARY OF ARGUMENT ........................... 3

REASONS FOR GRANTING THE

WRIT .................................................................. 5

I.

THE FEDERAL CIRCUIT HAS WRONGLY

CLOSED OFF ALL JUDICIAL REVIEW OF THE

EXTRA-STATUTORY RULES, PRACTICES, AND

POLICIES GOVERNING INSTITUTION..................... 5

II. THE AGENCY HAS CLAIMED UNREVIEWABLE

AUTHORITY OVER INSTITUTION SINCE THE

AIA’S EARLIEST DAYS—A CLAIM THIS COURT

LONG REJECTED, BUT WHICH THE DECISION

BELOW ACCEPTS .................................................. 8

A. Unreviewable Institution Standards Have

Led to Erratic Shifts in Policy ....................... 8

B. The Federal Circuit’s Application of Section

314(d) Is Unmoored from this Court’s

Decisions ........................................................ 9

iii

III. THE STATUTE DOES NOT IMBUE THE

DIRECTOR

WITH

UNBOUNDED,

UNREVIEWABLE DISCRETION TO SET

INSTITUTION STANDARDS DEPARTING FROM

THOSE CONGRESS ESTABLISHED ....................... 14

IV. THE AGENCY’S RECENT APPROACHES TO

DISCRETIONARY DENIAL FRUSTRATE THE

FUNDAMENTAL CONGRESSIONAL INTENT FOR

IPR .................................................................... 17

V. THE

AGENCY’S

UNBOUNDED,

UNREVIEWABLE

DISCRETIONARY

DENIAL HAS INFLICTED SEVERE,

DOCUMENTED HARM ON INNOVATION,

COMPETITION,

AND

AMERICAN

COMMERCE ..................................................... 21

CONCLUSION ....................................................... 28

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ........................................... 16

Apple Inc. v. Fintiv, Inc.,

No. IPR2020-00019, 2020 WL 2126495

(PTAB Mar. 20, 2020) ............. 3, 8, 12, 13, 15, 23

Apple Inc. v. Squires,

166 F.4th 1349 (Fed. Cir. 2026) .................... 5, 12

Apple Inc. v. Vidal,

63 F.4th 1 (Fed. Cir. 2023)............................ 5, 12

Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986) ............................................. 5

Cooper Techs. Co. v. Dudas,

536 F.3d 1330 (Fed. Cir. 2008) ......................... 25

Cuozzo Speed Techs., LLC v. Lee,

579 U.S. 261 (2016) ..................................... 3, 6, 7

In re Dominion Dealer Sols., LLC,

749 F.3d 1379 (Fed. Cir. 2014) ......................... 10

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016) ........................................... 27

v

Ethicon Endo-Surgery, Inc. v. Covidien LP,

812 F.3d 1023 (Fed. Cir. 2016) ......................... 10

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ........................................... 27

Judulang v. Holder,

565 U.S. 42 (2011) ............................................. 14

Magnolia Med. Techs., Inc. v. Kurin, Inc.,

No. IPR2026-00097, Paper 17

(PTAB May 14, 2026) ........................................ 16

Mercoid Corporation v. Mid-Continent

Investment Company,

320 U.S. 661 (1944) ........................................... 26

Mylan Labs. Ltd. v. Janssen

Pharmaceutica, N.V.,

989 F.3d 1375 (Fed. Cir. 2021) ........................... 6

NHK Spring Co. v. Intri-Plex Techs., Inc.,

No. IPR2018-00752, 2018 WL 4373643

(PTAB Sept. 12, 2018)......................................... 8

SAS Inst., Inc. v. Iancu,

584 U.S. 357 (2018) ....................................... 7, 11

St. Jude Med., Cardiology Div., Inc. v.

Volcano Corp.,

749 F.3d 1373 (Fed. Cir. 2014) ......................... 10

Synopsys, Inc. v. Mentor Graphics Corp.,

814 F.3d 1309 (Fed. Cir. 2016) ......................... 10

vi

Thryv, Inc. v. Click-To-Call Techs., LP,

No. 18-916 (2020) ............................................ 2, 7

Thryv, Inc. v. Click-To-Call Techs., LP,

590 U.S. 45 (2020) ............... 3, 6, 7, 12, 18, 19, 27

United States v. Nourse,

34 U.S. (9 Pet.) 8 (1835) ...................................... 5

Versata Dev. Grp., Inc. v. Lee,

793 F.3d 1352 (Fed. Cir. 2015) ......................... 11

Versata Dev. Grp., Inc. v. SAP Am., Inc.,

793 F.3d 1306 (Fed. Cir. 2015) ................... 10, 11

West Virginia v. EPA,

597 U.S. 697 (2022) ........................................... 16

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ..................................... 16, 17

Yates v. United States,

574 U.S. 528 (2015) ........................................... 15

Statutes

5 U.S.C. § 701(a)(2) ................................................ 12

35 U.S.C. § 311 ....................................................... 16

35 U.S.C. § 314(a) ........................... i, 3, 10, 14-17, 20

35 U.S.C. § 314(c) ................................................... 13

35 U.S.C. § 314(d) .............................. i, 2, 3, 5-7, 9-11

vii

35 U.S.C. § 315(a) ................................................... 18

35 U.S.C. § 315(b) ......................................... 6, 15, 18

35 U.S.C. § 315(e) ............................................. 16, 18

35 U.S.C. § 316(a) ................................................... 19

35 U.S.C. § 324(e) ................................................... 10

35 U.S.C. § 325(d) ................................................... 15

Administrative Procedure Act, 5 U.S.C.

§§ 551-559............................................................ 3

American Inventors Protection Act of 1999,

Pub. L. No. 106-113, § 4608, 113 Stat.

1501, 1501A-572 ................................................ 24

Other Authorities

37 C.F.R. § 42.108(a) (2017) ................................... 11

153 Cong. Rec. H10,271 (daily ed. Sept. 7,

2007) .................................................................. 17

154 Cong. Rec. S9988 (daily ed. Sept. 27,

2008) .................................................................. 18

157 Cong. Rec. S1326 (daily ed. Mar. 7,

2011) .................................................................. 19

157 Cong. Rec. S1352 (daily ed. Mar. 8,

2011) .................................................................. 18

viii

157 Cong. Rec. S1364 (daily ed. Mar. 8,

2011) .................................................................. 19

157 Cong. Rec. S1375 (daily ed. Mar. 8,

2011) .................................................................. 20

157 Cong. Rec. S1376 (daily ed. Mar. 8,

2011) .................................................................. 19

157 Cong. Rec. S1377 (daily ed. Mar. 8,

2011) .................................................................. 20

157 Cong. Rec. S5429 (daily ed. Sept. 8,

2011) .................................................................. 18

H.R. Rep. No. 112-98 ............................ 18, 19, 20, 24

Hearing Before the Subcomm. on Cts.,

Intell. Prop., A.I. & the Internet of the

H. Comm. On the Judiciary, 119 Cong.

(2026) ................................................................. 21

Lauren A. Degnan & Chris W. Dryer,

Federal Circuit Denies All Mandamus

Petitions Challenging Discretionary

Denial Policies, Fish & Richardson:

Insights, (Mar. 24, 2026) .................................... 6

Memorandum from Coke Morgan Stewart

to PTAB, Interim Processes for PTAB

Workload Management (Mar. 26, 2025) ..... 12, 22

ix

Memorandum from John A. Squires to

PTAB, Additional Discretionary

Institution Considerations (Mar. 11,

2026) .................................................................. 14

Memorandum from John A. Squires to

PTAB, Director Institution of AIA Trial

Proceedings (Oct. 17, 2025) ............................... 13

Memorandum from Katherine K. Vidal,

Under Sec'y of Com. For Intell. Prop. &

Dir., U.S. Pat. & Trademark Off., to

PTAB, Interim Procedure for

Discretionary Denials in AIA Post-Grant

Proceedings with Parallel District Court

Litigation (June 21, 2022) ...................... 9, 12, 23

Oliver Richards, Challenging PTO

Institution Policies (If Not Institution

Decisions), Patently-O (Jan. 29, 2017) ............. 11

PTAB Bar Association, Comments on Notice

of Proposed Rulemaking: Revision to

Rules of Practice Before the Patent Trial

and Appeal Board (Docket No. PTO-P2025-0025) (Dec. 2, 2025).................................. 25

90 Fed. Reg. 48,335 .................................. 2, 9, 13, 17

Sup. Ct. R. 37 ............................................................ 1

U.S. Pat. & Trademark Off., Inter Partes

Reexamination Filing Data (Sept. 30,

2017) .................................................................. 24

x

U.S. Pat. & Trademark Off., USPTO

Rescinds Memorandum Addressing

Discretionary Denial Procedures (Feb.

28, 2025) ............................................................ 12

U.S. Pat. & Trademark Off., PTAB Trial

Statistics FY24 End of Year Outcome

Roundup IPR, PGR (Sept. 30, 2024) ................. 4

U.S. Patent & Trademark Off., PTAB Trial

Statistics: 2025 End of Year Outcome

Roundup (rev. Nov. 2025) ................................. 22

U.S. Patent & Trademark Off., PTAB Trial

Statistics: June 2026 (June 30, 2026) .... 4, 22, 24

Unified Patents, Patent Dispute Report:

2025 in Review (Jan. 13, 2026) ......................... 26

1

IDENTITY AND INTEREST OF

AMICUS CURIAE

Under Supreme Court Rule 37, the PTAB Bar

Association respectfully submits this brief amicus

curiae, supporting granting the Petition for Writ of

Certiorari.1

The PTAB Bar Association is a voluntary

association of over 700 members dedicated to

promoting the highest professional and ethical

standards among lawyers and stakeholders appearing

before the Patent Trial and Appeal Board (“PTAB”) of

the United States Patent and Trademark Office

(“USPTO”). The Association is the only professional

organization exclusively devoted to legal practice

before the PTAB.

The Association’s membership represents a broad,

balanced spectrum of participants in the patent

system, including counsel for petitioners challenging

patents, counsel for patent owners defending patents,

in-house practitioners, and independent practitioners

advising clients regarding PTAB and other patent

proceedings. The Association takes no position on the

merits of any particular patent dispute, nor does it

Under Rule 37.2, on August 5, 2026, all parties with

counsel listed on the docket received notice of the Amicus

Curiae’s intention to file this brief.

1

Under Rule 37.6, Amicus Curiae affirms that no counsel

for any party authored this brief in whole or in part or made

a monetary contribution intended to fund this brief’s

preparation or submission. No person other than Amicus

Curiae, its members, or its counsel monetarily contributed to

this brief’s preparation or submission.

2

advocate on behalf of particular parties.

The

Association’s interest here is institutional: the proper

functioning, integrity, and lawful operation of the

inter partes review (“IPR”) system. Consistent with

that institutional role, the Association previously

appeared before this Court in support of neither party

in Thryv, Inc. v. Click-To-Call Techs., LP, No. 18-916

(2020), which likewise concerned the scope of § 314(d).

The Association is uniquely positioned to inform

this Court about the practical consequences of the

Federal

Circuit’s

unreviewability

holdings.

Association members have witnessed firsthand the

changes in IPR practice since its inception, including

the practice’s dramatic transformation since early

2025. The Association’s members’ observations reflect

the full impact of the USPTO’s policy shifts on all

participants from different technology sectors, not

merely petitioners.

The Association also participated in the comment

process surrounding the USPTO’s October 2025

Notice of Proposed Rulemaking (90 Fed. Reg. 48,335

(proposed Oct. 17, 2025) (to be codified at 37 C.F.R. pt.

42)) and has monitored the administrative and

judicial proceedings that frame the questions

presented here. The Association respectfully submits

this brief to provide the Court with the perspective of

the legal community routinely appearing before the

PTAB, a perspective that neither party’s brief can

fully supply.

3

SUMMARY OF ARGUMENT

No court, in any posture, may now review the

rules, practices, and policies by which the USPTO

governs institution of inter partes review. Direct

appeal is barred by § 314(d).

Mandamus is

unavailable. And under the decision below, a districtcourt challenge under the Administrative Procedure

Act to those practices themselves—not challenging

any institution decision—is also barred. The result is

a body of law, issued through procedures no law

defines and answerable to no court, yet binding every

participant in the patent system.

That result

contradicts the strong presumption favoring judicial

review, and exceeds this Court’s guidance in Cuozzo

and Thryv.

Since the AIA’s earliest days, the USPTO has

asserted unreviewable authority over IPR institution.

For nearly a decade, the courts rejected that assertion,

enforcing § 314(d) against challenges to individual

institution decisions while entertaining challenges to

the governing policies. After Thryv, the Federal

Circuit abandoned that distinction, and the agency

has since reshaped institution practice through a

dizzying succession of memoranda and notices—each

reversing the last, none tested in any court.

The agency’s actions rest on the same power:

“discretionary denial.” Invoking § 314(a), the agency

claims authority to deny any petition—however

meritorious or timely—for reasons appearing

nowhere in the statute. Under the Fintiv framework,

the PTAB denied institution based on predicted trial

dates in co-pending litigation. Guidance in 2022

4

curtailed that practice, but the agency reversed course

in 2025. It rescinded the guidance, assigned every

institution determination to the Director personally,

and proposed rules that would make such denials

categorical.

The consequences of allowing the agency such

unchecked power are severe. The institution rate

plummeted from 68% in fiscal year 20242 to 38%

through the third quarter of fiscal year 2026,3 and

monthly IPR and PGR petition filings collapsed from

132 (August 2024) to 20 (April 2026), 22 (May 2026),

and 28 (June 2026)—fewer than the pre-AIA

reexamination system Congress replaced precisely

because too few parties used it. Nearly 40% of this

fiscal year’s institution decisions are discretionary

denials.

Agency policy may lawfully evolve, but whether a

change is reasoned and lawful is a question for courts.

Because the decision below forecloses every avenue of

review for agency policy, no matter how arbitrary or

inconsistent with the statute, the petition should be

granted.

PTAB Trial Statistics FY24 End of Year Outcome Roundup

IPR, PGR 5, 6 (Sept. 30, 2024). https://www.uspto. gov/

2

sites/default/files/documents/ptab_aia_fy2024__roundup.pdf.

PTAB Trial Statistics: June 2026 5-7 (June 30, 2026)

[hereinafter June 2026 Statistics].

https://www.uspto.gov/

sites/default/files/ documents/Trial_Stats_June_2026.pdf.

3

5

REASONS FOR GRANTING THE WRIT

I.

THE FEDERAL CIRCUIT HAS WRONGLY CLOSED

OFF ALL JUDICIAL REVIEW OF THE EXTRASTATUTORY RULES, PRACTICES, AND POLICIES

GOVERNING INSTITUTION

The presumption that executive officers must

answer to the courts predates the modern

administrative state by at least a century. Chief

Justice Marshall thought it “would excite some

surprise if, in a government of laws,” an executive

officer “might, at his discretion,” act against a citizen

while “leaving [him] no remedy, no appeal to the laws

of his country.” United States v. Nourse, 34 U.S. (9

Pet.) 8, 28-29 (1835). Applying this principle, this

Court has consistently “beg[u]n with the strong

presumption that Congress intends judicial review of

administrative action.” Bowen v. Mich. Acad. of

Family Physicians, 476 U.S. 667, 670 (1986). Yet

under the Federal Circuit’s decisions, the USPTO’s

rules, practices, and policies governing institution of

IPR now answer to no court.

The decision below holds that 35 U.S.C. § 314(d)

bars an APA challenge to the standards and policies

governing institution even where, as here, no

individual institution decision is challenged. Apple

Inc. v. Vidal, 63 F.4th 1, 14-15 (Fed. Cir. 2023). The

Federal Circuit further held that those same

standards may issue without notice and comment

because they are mere “general statements of policy”

describing how the Director “proposes to exercise a

discretionary power.” Apple Inc. v. Squires, 166 F.4th

1349, 1359-60 (Fed. Cir. 2026).

Section 314(d)

6

forecloses direct appeal, and the Federal Circuit has

held that mandamus is categorically unavailable

absent a “colorable constitutional claim.” Mylan Labs.

Ltd. v. Janssen Pharmaceutica, N.V., 989 F.3d 1375,

1382-83 (Fed. Cir. 2021).4 The combined effect is that

no avenue exists—before, during, or after any

proceeding—by which any party may test whether the

Director’s institution practices comport with the

statute.

That is not what this Court held in Cuozzo or

Thryv, both of which address the reviewability of

decisions relating to IPR institution.

Cuozzo

interprets § 314(d) against the “strong presumption”

favoring judicial review and takes care to preserve

review where the agency “act[s] outside its statutory

limits” or engages in “shenanigans.” Cuozzo Speed

Techs., LLC v. Lee, 579 U.S. 261, 273, 275 (2016).

Thryv bars appeal of a time-bar ruling precisely

because § 315(b) is “integral to, indeed a condition on,

institution,” and entertaining appeal after a final

written decision might unwind a completed

proceeding. Thryv, Inc. v. Click-To-Call Techs., LP,

590 U.S. 45, 53-55 (2020). Neither rationale reaches

Over the past year, the Federal Circuit denied approximately

a dozen mandamus petitions challenging the USPTO’s

discretionary-denial practices. Lauren A. Degnan & Chris W.

Dryer, Federal Circuit Denies All Mandamus Petitions

Challenging Discretionary Denial Policies, Fish & Richardson:

Insights (Mar. 24, 2026). https://www.fr.com/insights/thoughtleadership/blogs/federal-circuit-denies-all-mandamus-petitionschallenging-discretionary-denial-policies/.

4

7

a prospective challenge to imposing extra-statutory

requirements upon institution.5

In Thryv, the PTAB Bar Association cautioned

that, because § 314(d) questions arise in many

postures, the Court’s reasoning would govern cases far

removed from the facts before it. Brief for PTAB Bar

Ass’n as Amicus Curiae Supporting Neither Party at

10-13, Thryv, Inc. v. Click-To-Call Techs., LP, 590

U.S. 45, No. 18-916 (2020). The Association observed

that, on one reading, the agency could insulate its

determinations from review through its own

procedural choices. Id. at 13 n.3. What followed

exceeded anything any participant in Thryv urged:

the Federal Circuit has read Cuozzo and Thryv to

place the standards governing institution beyond all

judicial review, converting a provision ensuring the

finality of individual institution decisions into an

immunity covering every aspect of institution—an

immunity this Court expressly declined to confer. See

SAS Inst., Inc. v. Iancu, 584 U.S. 357, 370 (2018)

(rejecting the argument that § 314(d) forecloses

review of “any legal question bearing on the

institution of inter partes review”).

When the Association addressed § 314(d) in Thryv,

it told this Court that “[p]atent owners generally favor

reviewability while patent challengers generally do

not.” Brief for PTAB Bar Ass’n as Amicus Curiae at

2. That was 2019, when § 314(d) barred a patent

owner’s challenge. Today the poles have reversed, as

Both Cuozzo and Thryv involved challenges to instituted

proceedings, but their reasoning—applying § 314(d) to the

agency’s case-specific “initial determination”—is instructive

here. E.g., Cuozzo, 579 U.S. at 273.

5

8

the Petition here demonstrates. The party seeking

review changes with each shift in the Director’s

policies; the need for review does not. The Association

does not contend that individual institution

determinations should generally be appealable—

Congress chose finality for those decisions, and the

efficiency of the IPR system depends on it. Rather,

the Association urges this Court to grant the Petition

and address the reviewability of the agency’s

institution criteria.

II.

THE AGENCY HAS CLAIMED UNREVIEWABLE

AUTHORITY OVER INSTITUTION SINCE THE AIA’S

EARLIEST DAYS—A CLAIM THIS COURT LONG

REJECTED, BUT WHICH THE DECISION BELOW

ACCEPTS

A.

Unreviewable Institution Standards

Have Led to Erratic Shifts in Policy

The USPTO’s institution policies have shifted

dramatically from one administration to the next.

The Fintiv framework that the Federal Circuit

deemed unreviewable below took hold when the

USPTO designated Apple Inc. v. Fintiv, Inc., No.

IPR2020-00019, 2020 WL 2126495 (PTAB Mar. 20,

2020) precedential on May 5, 2020, formalizing a

discretionary-denial rationale previously introduced

in NHK Spring Co. v. Intri-Plex Techs., Inc., No.

IPR2018-00752, 2018 WL 4373643, at *4 (PTAB Sept.

12, 2018). The Fintiv factors required the PTAB to

predict when a district court trial would occur and tilt

towards denial when that predicted date preceded the

Board’s deadline for a final written decision. Fintiv,

2020 WL 2126495, at *4.

9

Those predictions consistently proved unreliable.

Then-Director Katherine Vidal acknowledged in a

June 2022 Interim Memorandum that “scheduled

trial dates are unreliable and often change,” and “[a]

court’s scheduled trial date . . . is not by itself a good

indicator of whether the district court trial will occur

before the statutory deadline for a final written

decision.”6

Yet three years later, the agency proposed to

entrench the very predictor it had disparaged. In

October 2025, the USPTO published a proposed rule

under which an IPR “shall not be instituted or

maintained” if it is “more likely than not” that a

district court trial “will occur . . . before the due date

for the final written decision.” 90 Fed. Reg. 48,335,

48,341. Within five years, the agency declared the

anticipated-trial-date factor important, cautioned

against outsized reliance on it, and then proposed

making it a categorical bar. Each shift was made in

the agency’s sole discretion, and under the Federal

Circuit’s jurisprudence, none can be tested in court.

B.

The Federal Circuit’s Application of

Section 314(d) Is Unmoored from this

Court’s Decisions

Despite this whiplash, one USPTO position has

remained the same: the agency’s authority over

institution (including every applicable rule, policy,

Memorandum from Katherine K. Vidal, Under Sec’y of Com.

For Intell. Prop. & Dir., U.S. Pat. & Trademark Off., to PTAB,

6

Interim Procedure for Discretionary Denials in AIA Post-Grant

Proceedings with Parallel District Court Litigation 8 (June 21,

2022) [hereinafter June 2022 Guidance].

10

and practice) is unlimited in scope and subject to no

court’s review.

Initially, courts refused that claim. When parties

sought review of individual institution decisions,

courts enforced § 314(d) as written: no appeal, St.

Jude Med., Cardiology Div., Inc. v. Volcano Corp., 749

F.3d 1373 (Fed. Cir. 2014); and no mandamus, In re

Dominion Dealer Sols., LLC, 749 F.3d 1379 (Fed. Cir.

2014). But where the challenges addressed the

practices and limits governing institution, courts

adjudicated them, entertaining (for example)

challenges to regulations delegating institution to the

PTAB, Ethicon Endo-Surgery, Inc. v. Covidien LP,

812 F.3d 1023 (Fed. Cir. 2016), and governing

institution itself, Synopsys, Inc. v. Mentor Graphics

Corp., 814 F.3d 1309 (Fed. Cir. 2016).

The Federal Circuit’s Versata decision is

instructive. Versata Dev. Grp., Inc. v. SAP Am., Inc.,

793 F.3d 1306 (Fed. Cir. 2015). The PTAB there had

invalidated a patent in a covered-business-method

proceeding—a transitional AIA program governed by

a review bar materially identical to § 314(d). See 35

U.S.C. § 324(e). Congress had limited that program

in terms structurally similar to § 314(a): “The Director

may institute a transitional proceeding only for a

patent that is a covered business method patent.” AIA

§ 18(a)(1)(E) (emphasis added). The agency argued

that § 324(e) placed its statutory compliance beyond

judicial review because the limit applied at

institution.

The Federal Circuit rejected that

position, holding that the review bar reaches the

institution determination itself but does not foreclose

review of “PTAB compliance with any requirement

11

that involves the ultimate authority of the PTAB to

invalidate a patent.” Versata, 793 F.3d at 1319-23.

The Federal Circuit likewise dismissed the same

party’s district-court APA attack on the institution

decision in its own case. Versata Dev. Grp., Inc. v.

Lee, 793 F.3d 1352 (Fed. Cir. 2015). Taken together,

these decisions established that individual institution

determinations were ordinarily final, but a statutory

limit does not become unreviewable merely because

the agency administers it at the time of institution.

This Court’s previous opinions similarly

distinguished unreviewable decisions from reviewable

rules. In Cuozzo, this Court turned away a challenge

to an individual decision because it was “closely tied

to the application and interpretation of statutes

related to” institution, but preserved review of agency

action “outside its statutory limits.” Cuozzo, 579 U.S.

at 275. This Court then proceeded, in the same

opinion, to review and sustain on the merits a USPTO

regulation governing the conduct of the IPR before it.

Id. at 280-84.

SAS rejected the government’s

argument that § 314(d) forecloses “any legal question

bearing on the institution” of IPR and invalidated a

USPTO regulation codifying its partial-institution

practice, 37 C.F.R. § 42.108(a) (2017), as inconsistent

with the statute. SAS, 584 U.S. at 370. These

decisions illustrate that USPTO rules are reviewable,

but decisions applying institution-specific provisions

to particular cases are not.7

E.g., Oliver Richards, Challenging PTO Institution Policies

(If Not Institution Decisions), Patently-O (Jan. 29, 2017).

7

https://patentlyo.com/patent/2017/01/ipr-regulatory-review.

html.

12

Since Thryv, however, the Federal Circuit treats

agency rules and practices as unreviewable. In 2022,

when the Director revised the Fintiv framework by

memorandum, without Federal Register publication,

the agency invoked “the Director’s authority to issue

binding agency guidance to govern the PTAB’s

implementation of various statutory provisions.”

Apple Inc. v. Vidal, 63 F.4th at 9 (quoting the

memorandum) (emphasis added). When Petitioners

challenged the rule under the APA, the government

argued that institution policy is “committed to agency

discretion by law,” 5 U.S.C. § 701(a)(2), and

reviewable by no one. Apple Inc. v. Vidal, 63 F.4th at

13. When the notice-and-comment question reached

the Federal Circuit, the government prevailed by

recharacterizing the Director’s “binding agency

guidance” as non-binding “general statements of

policy.” Apple Inc. v. Squires, 166 F.4th at 1359-60.

The agency has pressed its maximalist assertion of

unreviewable authority further still. In February

2025, the agency rescinded its June 2022 guidance.8

In March, another memorandum bifurcated

institution, routing every petition through a

discretionary phase decided by the Director

personally before any PTAB panel considers the

merits.9 In October, the Director announced that he

USPTO Rescinds Memorandum Addressing Discretionary

Denial Procedures (Feb. 28, 2025). https://www.uspto.gov/about8

us/news-updates/uspto-rescinds-memorandum-addressingdiscretionary-denial-procedures (last visited Aug. 7, 2026).

Memorandum from Coke Morgan Stewart to PTAB, Interim

Processes for PTAB Workload Management (Mar. 26, 2025),

9

https://www.uspto.gov/sites/default/files/documents/InterimProc

13

would

thereafter

decide

every

institution

determination himself through “summary notices”

devoid of explanation (notwithstanding § 314(c)’s

directive that the parties be notified “in writing” of

“the Director’s determination under subsection (a)”).10

Whatever standards drove these denials—the Fintiv

factors, some modification, or none at all—neither the

petitioners, patent owners, nor any reviewing court

can know because the agency no longer says. A regime

of unreviewable standards has thus given way to

unreviewable decisions applying unstated standards.

That same day, the agency proposed codifying

categorical bars to institution while asserting that

such rules “do not require notice-and-comment

rulemaking” under § 553 “or any other law.” Revision

to Rules of Practice Before the Patent Trial and

Appeal Board, 90 Fed. Reg. 48,335, 48,337-41.

Finally, in March 2026, the Director announced by

memorandum, effective immediately, that institution

would thereafter turn in part on the parties’ domesticmanufacturing operations and the petitioner’s status

esses-PTABWorkloadMgmt-20250326.pdf [hereinafter Interim

Process Memorandum].

Memorandum from John A. Squires to PTAB, Director

of AIA Trial Proceedings (Oct. 17, 2025).

https://www.uspto.gov/sites/default/files/documents/Director_In

stitution_of_AIA_Trial_Proceedings.pdf. On October 31, 2025,

the Director issued his first set of institution decisions, denying

thirteen petitions in a single document without explanation.

Notice of Decisions on Institution, No. IPR2025-01139, Paper 10

(PTAB Oct. 31, 2025).

10

Institution

14

as a small business—considerations

nowhere in the statute.11

appearing

The result is that the agency’s institution rules

bind all participants in the patent system, emerge

from procedures no law defines, and escape review by

any court. Yet even where Congress commits a matter

to an agency’s judgment, “courts retain a role, and an

important one, in ensuring that agencies have

engaged in reasoned decisionmaking.” Judulang v.

Holder, 565 U.S. 42, 53 (2011). Because the decision

below forecloses that role, leaving the agency free to

act on whim alone, this Court’s review is required.

III.

THE STATUTE DOES NOT IMBUE THE DIRECTOR

WITH UNBOUNDED, UNREVIEWABLE DISCRETION

TO SET INSTITUTION STANDARDS DEPARTING

FROM THOSE CONGRESS ESTABLISHED

The text and structure of the AIA confirm that the

Director does not have unconstrained authority to

implement unreviewable standards for institution.

The USPTO and the Federal Circuit invoke Section

314(a), which describes what the agency “may not” do,

to conclude that the USPTO may do whatever it

wants:

The Director may not authorize an inter

partes review to be instituted unless the

Director determines . . . that there is a

Memorandum from John A. Squires to PTAB, Additional

Discretionary Institution Considerations 1-3 (Mar. 11, 2026).

11

https://www.uspto.gov/sites/default/files/documents/Additional_

Discretionary_Institution_Considerations_US_Manufacturing_

and_Small_Business_Use_of_AIA_Proceedings.pdf.

15

reasonable likelihood that the petitioner would

prevail with respect to at least 1 of the claims

challenged in the petition.

35 U.S.C. § 314(a) (emphasis added).

Throughout the challenges to its “discretionary”

denial framework, the USPTO has identified no other

statutory support for its approach. Yet, this Court has

never interpreted the word “may” as granting the

discretion that the USPTO has claimed, let alone the

phrase “may not.”

The

statutory

framework

demonstrates,

furthermore, that Congress never envisioned that

§ 314(a) would be read to grant unlimited discretion

to modify the statutory requirements for IPR and

deny timely, meritorious petitions. The USPTO’s

reading of the statute cannot be correct because it

“would render superfluous an entire provision,”

Section 325(d), “passed in proximity as part of the

same Act.” Yates v. United States, 574 U.S. 528, 543

(2015). Section 325(d) enumerates specific instances

where the USPTO may deny otherwise meritorious

petitions based on certain, sufficiently related USPTO

proceedings. If Section 314(a) confers unlimited

discretion to deny meritorious petitions for any

reason, then Section 325(d) is pointless.

In fact, Congress has already spoken to the

subjects of many of the USPTO’s “discretionary

policies.” Congress set a one-year deadline for filing

IPRs, 35 U.S.C. § 315(b); the USPTO set a “fasterthan-time-to-trial” deadline under Fintiv, blaming

petitioners for parallel litigation even though they

have no control over whether a parallel litigation is

16

stayed. Magnolia Med. Techs., Inc. v. Kurin, Inc., No.

IPR2026-00097, Paper 17, at 3 (PTAB May 14, 2026)

(precedential).

The USPTO has also indicated that it will bias its

discretion against foreign-backed petitioners (but not

necessarily foreign-backed patent owners), id. at 8,

even though Congress specified that any “person who

is not the owner of a patent” may seek review, 35

U.S.C. § 311. Congress specified the scope of estoppel

that shall arise from IPRs, 35 U.S.C. § 315(e); the

USPTO has proposed requiring certain petitioners to

stipulate to broader estoppel as a condition of

institution. 90 Fed. Reg. 48,335, 48,338, 48,341.

The AIA’s structure thus does not support the

USPTO’s position that a statutory limitation on its

power in a section entitled “Threshold” confers

unlimited authority to rewrite these statutory

provisions. Almendarez-Torres v. United States, 523

U.S. 224, 234 (1998). If Congress wanted to give the

USPTO such broad power, it knew how to do so.

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468

(2001) (“[Congress] does not . . . hide elephants in

mouseholes.”).

The USPTO’s discretionary-denial practices have

far-reaching economic and political impacts despite no

clear statement from Congress that the USPTO had

the authority to make such rules in the first place.

Under the “major questions” doctrine, courts presume

that Congress does not delegate decisions of vast

“economic and political significance” to an agency

using vague, subtle, or cryptic terms. West Virginia

v. EPA, 597 U.S. 697, 729-30 (2022). Reading Section

17

314(a)’s statutory limit on the Director’s authority as

a legislative delegation of vast discretionary authority

to rewrite the scope and availability of AIA

proceedings flouts this rule.

By divorcing the

Director’s discretion from any intelligible principle,

the Federal Circuit has created an anti-delegation

problem where one otherwise would not exist.

Whitman, 531 U.S. at 472 (“[W]hen Congress confers

decisionmaking authority upon agencies Congress

must lay down by legislative act an intelligible

principle to which the person or body authorized to act

is directed to conform.”) (original emphasis, cleaned

up).

USPTO shenanigans should not escape judicial

review based on a blanket assertion of “discretion.”

IV.

THE AGENCY’S RECENT APPROACHES TO

DISCRETIONARY DENIAL FRUSTRATE THE

FUNDAMENTAL CONGRESSIONAL INTENT FOR

IPR

The absence of judicial review, coupled with the

Director’s claims of unbounded discretion, has

undermined, not furthered, Congress’s goals in

enacting the AIA.

Congress recognized the importance to the U.S.

economy of correctly answering the patent validity

questions and avoiding expensive and resourceconsumptive district court litigation, where lay juries

must assess complex technologies. See, e.g., 153

Cong. Rec. H10,271 (daily ed. Sept. 7, 2007) (“[W]eak

patents and ‘seat-of-the-pants’ litigation has hurt the

economy.”); id. at H10,284 (lamenting “baseless

claims of infringement sapping billions from economic

18

growth”); 157 Cong. Rec. S1352 (daily ed. Mar. 8,

2011) (PTAB judges “more likely to reach the correct

decision on a technical question” compared to a lay

jury).

A fundamental purpose of IPR is to “weed out bad

patent claims efficiently.” Thryv, 590 U.S. at 54.

Congress designed IPRs with practical realities in

mind—the timelines of co-pending litigation, the

limitations of pre-AIA reexaminations, and the

burden on the USPTO’s workload.

Congress expected IPRs to co-exist with copending litigation. Section 315(a) preserves access to

IPR for a defendant actively litigating invalidity, for

example, where it did not initiate the civil action

challenging the patent. Section 315(b) provides that

an IPR may not be instituted more than one year after

an infringement case is filed, similarly contemplating

institution alongside co-pending litigation.

This

“section 315(b) deadline afford[s] defendants a

reasonable opportunity to identify and understand

the patent claims that are relevant to the litigation.”

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

Kyl). Thus, Congress struck a balance between a

defendant’s access to IPR early in litigation while

protecting patent owners from inordinately delayed

challenges. See H.R. Rep. No. 112-98, at 47-48.

Similarly, Section 315(e)’s estoppel provision

contemplates but places guardrails around co-pending

litigation to avoid serial, identical challenges to

patents. Congress added these provisions to remedy

the prior “[l]engthy and duplicative proceedings.” 154

Cong. Rec. S9988 (daily ed. Sept. 27, 2008) (Sen. Kyl).

19

Congress’s careful design is undermined by the

agency’s using unstayed, co-pending litigation as a

reason to deny institution.

Indeed, Congress

envisioned a USPTO that “ma[de] every effort to

complete its [post-grant] review expeditiously,”

particularly when working alongside unstayed

district court litigation. 157 Cong. Rec. S1364 (daily

ed. Mar. 8, 2011) (Sen. Schumer, concerning CBM

proceedings).

Congress acknowledged the limitations of pre-AIA

reexaminations, which disincentivized their use. See

H.R. Rep. No. 112-98, at 46. Congress designed IPR

to be different—to “establish a more efficient and

streamlined patent system that will improve patent

quality and limit unnecessary and counterproductive

litigation costs.” Thryv, 590 U.S. at 54. For example,

finding the typical 3- to 5-year timeline of pre-AIA

inter partes reexamination too slow, Congress

required the USPTO, in Section 316(a)(11), to render

an IPR final determination within one year.

Reexaminations’

institution

threshold—a

“substantial new question of patentability”—admitted

too many “challenges that were unlikely to win in any

event.” 157 Cong. Rec. S1326 (daily ed. Mar. 7, 2011)

(Sen. Sessions); H.R. Rep. No. 112-98, at 46-47.

Therefore, Congress provided the “reasonable

likelihood of success” standard to force challengers to

“front load their case.” 157 Cong. Rec. S1376 (daily

ed. Mar. 8, 2011) (Sen. Kyl). The rules for limited

discovery require the same: a petitioner raising factintensive issues in IPR must “present a complete case

at the outset” rather than rely on protracted and

laborious discovery. 157 Cong. Rec. S1375 (daily ed.

20

Mar. 8, 2011) (Sen. Kyl); H.R. Rep. No. 112-98, at 4647.

The goal of IPR is efficiency, and Congress gave the

Director limited institution discretion to further that

goal. 157 Cong. Rec. S1377 (daily ed. Mar. 8, 2011)

(Sen. Kyl).

Specifically, Congress expected the

Director “to decline to institute further proceedings if

a high volume of pending proceedings threatens the

USPTO’s ability to timely complete all proceedings.”

Id. In Section 316(b), Congress empowered the

Director to prescribe regulations for IPRs, considering

the effect of legislatively mandated priorities,

including those reflecting “a legislative judgment that

it is better that the Office turn away some petitions

that otherwise satisfy the threshold for instituting an

inter partes or post-grant review than it is to allow the

USPTO to develop a backlog of instituted reviews.”

Id. This explanation would have been unnecessary if

Section 314(a) granted plenary discretion to deny

meritorious petitions based on the Director’s whims.

Congress “intend[ed] for the USPTO to address

potential abuses and current inefficiencies under its

expanded procedural authority”—not to hinder access

to the carefully designed “quick and cost[-]effective

alternatives to litigation.” H.R. Rep. No. 112-98, at

48.

21

V.

THE AGENCY’S UNBOUNDED,

UNREVIEWABLE DISCRETIONARY DENIAL

HAS INFLICTED SEVERE, DOCUMENTED

HARM ON INNOVATION, COMPETITION,

AND AMERICAN COMMERCE

The United States’s position as the world’s

leading technology innovator depends on a patent

system that rewards genuine invention while

efficiently clearing invalid patents that obstruct the

technology commons.

Affording the agency

unbounded, unreviewable discretion to gatekeep

the system that Congress designed systematically

degrades that function.

In his March 2026 testimony before the House

Judiciary

Subcommittee,

Director

Squires

defended recent changes as promoting stability,

certainty, and investment, asserting that

“investors invest when the rules are clear,

entrepreneurs take risks when the law affords

predictable outcomes and innovators get in the

game when they know their ideas will be

protected.”12 He added that the Director-alone

institution process “has promoted the consistent

application of the discretionary considerations for

institution of IPRs and PGRs, which has allowed

the public to make informed decisions about

Oversight of the U.S. Patent and Trademark Office: Hearing

Before the Subcomm. on Cts., Intell. Prop., A.I. & the Internet of

the H. Comm. on the Judiciary, 119 Cong. (2026) (statement of

John A. Squires, Under Sec’y of Com. for Intell. Prop. & Dir., U.S.

Pat. & Trademark Off.). https://judiciary.house.gov/sites/evosubsites/republicans-judiciary.house.gov/files/evo-mediadocument/squires-testimony.pdf.

12

22

whether or not to challenge a patent at the

PTAB.”13

In practice, these changes have destabilized the

economy by shielding invalid patents from review,

enabling patent holders to weaponize them against

innovators or extract nuisance settlements,

suppressing competition, and disproportionately

harming smaller and newer companies that depend

on accessible patent challenges to innovate. The

USPTO’s own statistics record that shift.

Discretionary denial leaves patent claims

unexamined without any validity assessment.14 In

fiscal year 2025, the USPTO denied 304 petitions

on discretionary considerations, leaving 3,794

patent claims unreviewed.15 In fiscal year 2026

through the third quarter, the Director resolved

681 petitions on discretionary considerations,

denying 407 and referring only 274 for merits

review.16

Discretionary denials have risen to

13

Id.

14

Interim Process Memorandum.

15

PTAB Trial Statistics: 2025 End of Year Outcome Roundup

6, 14 (rev. Nov. 2025). https://www.uspto.gov/sites/default/files/

documents/Trial_StatsFY25_Q4.pdf. Because the bifurcated

process took effect in March 2025, see Interim Process

Memorandum, the fiscal year 2025 figures reflect roughly half of

a year of that practice. Weaker petitions do not explain the

decline. Petitions receiving a decision on the merits were

instituted 74.5% of the time in fiscal year 2024 and 77.2% in

fiscal year 2025, while denials on the merits fell from 263 to 187

and denials on other grounds rose from 67 to 426. See Unified

Patents, PTAB database (data as of Aug. 6, 2026).

16

June 2026 Statistics at 6.

23

account for nearly half of institution decisions.17

The institution rate cratered from 68% in fiscal

year 2024 to 50% in fiscal year 2025, and to 38%

through the third quarter of fiscal year 2026.

Denials on non-merit grounds have risen and

fallen with changes in the USPTO’s leadership

rather than with any criterion Congress enacted.

By Unified Patents’ count, there were 209 nonmerits denials in 2020, the year Fintiv issued; 62 in

2023, under the June 2022 Guidance; and 605 in

2025, more than the four preceding years

combined.18 None was subject to judicial review.

Of 823 institution decisions entered in fiscal year 2026

through the third quarter (314 instituted and 509 denied), 407

were discretionary denials. June 2026 Statistics at 6-7.

17

Unified Patents, PTAB database (data as of Aug. 6, 2026).

Decisions on institution coded “Denied on non-merits grounds,”

by calendar year: 165 in 2019; 209 in 2020; 177 in 2021; 84 in

2022; 62 in 2023; 88 in 2024; and 605 in 2025. This category

comprises all denials resting on grounds other than the merits

and is broader than the USPTO’s “discretionary considerations”

figures cited supra notes 14-15, which count only decisions taken

through the process adopted in March 2025. Figure 1 draws on

the same Unified Patents data on institution decision,

aggregated by calendar quarter rather than by year.

18

24

As access has narrowed, the forum has emptied:

monthly IPR filings fell from 126 in August 2025 to

22 in June 2026.19 Between April and June 2026,

petitions for IPR averaged 19 per month.20 Recall

that Congress replaced inter partes reexamination

in part because too few parties used it.21 By

comparison, in fiscal year 2011 (the year the AIA

was enacted), the USPTO received approximately

31 requests for inter partes reexamination per

month.22 Inter partes reexamination was available

for only patents issuing from an original application

19

June 2026 Statistics at 5.

20

Id.

21

H.R. Rep. No. 112-98, at 46; see supra Section IV.

Both monthly figures are averages: 374 requests over the

twelve months of fiscal year 2011, and 57 IPR petitions over the

three months from April through June 2026. Inter Partes

Reexamination Filing Data 1 (Sept. 30, 2017). https://www.

uspto.gov/sites/default/files/documents/inter_parte_historical_st

ats_roll_up.pdf.

22

25

filed on or after November 29, 1999,23 whereas IPR is

available against any patent. IPR now draws fewer

filings per month than inter partes reexamination did,

despite reaching a larger set of patents.

As the Association explained in its December 2,

2025 public comments to the USPTO’s Notice of

Proposed Rulemaking (“NPRM”), changes like those

the Director has implemented will impose severe

harm on competition, market entry, and innovation by

smaller companies.24 The Association warned that

the proposed rules “will likely significantly restrict

access to AIA proceedings, particularly IPRs, for

companies with legitimate business concerns who

seek to clear the way for future investment or who

seek lower-cost alternatives to litigation.”25 The

Association explained that companies “that bring new

products to market, including some life science

companies with innovative solutions that save and

improve lives, rely on IPRs as an economically

reasonable alternative to costly litigation,” meaning

that “[r]estricting access to IPRs, which were intended

for that very purpose, will increase the economic

barrier to market entry, deter investment in new

American Inventors Protection Act of 1999, Pub. L. No. 106113, § 4608, 113 Stat. 1501, 1501A-572; see Cooper Techs. Co. v.

Dudas, 536 F.3d 1330, 1331, 1341-43 (Fed. Cir. 2008) (upholding

the agency’s construction of “original application” to include

continuations, divisionals, and continuations-in-part).

23

PTAB Bar Association, Comments on Notice of Proposed

Rulemaking: Revision to Rules of Practice Before the Patent

Trial and Appeal Board (Docket No. PTO-P-2025-0025) (Dec. 2,

24

2025).

https://www.ptabbar.org/docs/PTAB_Bar_Association_

Response_to_NPRM_12-2-2025.pdf.

25

Id.

26

products, or make products unnecessarily costly for

consumers and patients.”26

The availability of IPR proceedings has historically

provided critical leverage for innovators to resolve IP

disputes. When an accused infringer can credibly

address invalidity arguments involving an asserted

patent with an IPR petition, the patent holder must

factor in the risk of the patent’s invalidation.

Restricting access to such proceedings—as allowed

under the decision below—forces innovative

companies27 to make the untenable choice between

seeking a license of invalid patents (paying a royalty

on technology they should be able to use freely),

endeavoring to design around them (diverting R&D

resources from genuine innovation into legally

motivated workarounds), or litigating at enormous

expense. 28

This Court has long recognized that the patent

system exists to serve the public, not the patentee.

As this Court declared in Mercoid Corporation v.

26

Id.

Data reported by Unified Patents demonstrates the

change in discretionary denial practice has disproportionately

benefited non-practicing entities (NPEs) over true innovators.

Unified Patents, Patent Dispute Report: 2025 in Review (Jan. 13,

2026).

https://www.unifiedpatents.com/insights/2026/1/13/

patent-dispute-report-2025-in-review. Through the end of

2025, patents held by NPEs had an institution rate roughly

20 percentage points lower than that for patents owned by

product-producing companies.

27

See Finestone Insurance, IP – AIPLA Survey, https://

finestoneinsurance.com/intellectual_property/aipla-survey/ (last

visited Aug. 12, 2026).

28

27

Mid-Continent Investment Company, “it is the

public interest which is dominant in the patent

system,” and it is precisely “the protection of the

public in a system of free enterprise which alike

nullifies a patent where any part of it is invalid.”

320 U.S. 661, 665 (1944). That principle is not

merely a background norm, but an affirmative

judicial duty. As warned by this Court in Mercoid,

such a patent “would be diverted from its statutory

purpose and become a ready instrument for

economic control in domains where the anti-trust

acts or other laws not the patent statutes define the

public policy.” Id. at 666. Congress carefully

designed IPR to serve this public interest in

“weed[ing] out bad patent claims efficiently.” Thryv,

590 U.S. at 54.

Whether the USPTO’s recent changes to the

policies driving discretionary denial are net positive

or net negative is debatable. And Congress expects

agency policy to evolve, including with changes in

administration. E.g., Encino Motorcars, LLC v.

Navarro, 579 U.S. 211 (2016); FCC v. Fox Television

Stations, Inc., 556 U.S. 502 (2009). That expectation

does not mean, however, that an agency may

disregard a statute’s requirements or frustrate its

purpose or that an agency’s policy changes should not

be reviewable by courts. Indeed, both Encino and Fox

are cases testing whether an agency’s explanation for

a change sufficed.

Here, although the agency’s various memoranda

recite reasons, whether those recitals satisfy the law

is a question the decision below places beyond

review—in any forum. This Court should grant the

28

Petition for Writ of Certiorari so that courts may

address that question.

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted and the Federal Circuit

should be reversed.

DATED: August 17, 2026

Respectfully submitted,

Brenton R. Babcock

COUNSEL OF RECORD

Yang Wang

PTAB Bar Association

1660 International Drive

Suite 600

McLean, VA 22102

(703) 570-8192

amicusbrief@ptabbar.org

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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