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.