In January 2026 the Office designated eight referrals that had cleared discretionary denial. By then the Board had already denied institution in three of them, and a fourth had ended before institution. Four went to trial.
Before you read
The Director referred eight petitions past discretionary denial, and the Office later designated those referrals. How many went to trial?
Four. The Board denied three on the merits stage, and one petition was terminated before institution.
Part 1 of 7
On September 4, 2025, the Director declined to deny Home Depot’s petition against an H2 Intellect patent and referred it to the Board. Forty-six days later, the Board denied institution.
That referral is now an informative decision, one of 13 the Office designated on a single day. It is a good guide to how the Director weighs settled expectations. It says nothing about whether Home Depot’s challenge was any good.
Part 2 of 7
The eight referrals in this story went through two separate decisions. First, the Director decided discretionary denial: whether to refuse the petition for reasons other than the merits, such as a parallel trial date, the patent’s age or earlier petitions. If the Director declined to deny, the petition was referred to a Board panel for the ordinary institution decision on the merits.
The referral orders say so themselves. Each bars rehearing or Director Review of the discretionary ruling “until the Board issues a decision on institution.”
The process has since changed. Since October 20, 2025, the Director decides institution directly, weighing discretion, merits and the other requirements together, usually by summary notice. Petitions referred before that date stayed with their panels.
| The eight 2025 referrals | Since Oct 20, 2025 | |
|---|---|---|
| Discretionary denial | The Director, in a written decision | The Director |
| Merits of institution | A three-judge Board panel | The Director, after consulting at least three judges; usually a summary notice |
| Trial, if instituted | Board panel | Board panel |
Source: USPTO memo, Director Institution of AIA Trial Proceedings (Oct. 17, 2025, effective Oct. 20, 2025).
Part 3 of 7
On January 9, 2026, the Office designated 13 Director discretionary-denial decisions at once: 4 precedential and 9 informative. Six petitions were denied at the Director stage. Eight lead cases were referred.
14 entries from 13 designated decisions
Tap a segment to see the cases.
Amgen’s single order denied two petitions and referred the third, so it appears on both sides: 6 + 8 = 14 entries from 13 decisions.
Part 4 of 7
Here is what happened to each referred lead case, according to the USPTO’s Open Data Portal as of October 15, 2026. Filter by outcome.
NextInstituted June 23, 2025, 11 days later.
Since thenODP lists a final written decision on Aug 31, 2026. A trade report on a late-August decision in consolidated IPRs on Feit’s ’678 patent says every claim asserted against Savant and LEDVANCE was held unpatentable. Whether that decision is the one in this petition, and its outcome, have not been confirmed from the official record.
NextInstituted June 26, 2025, 13 days later.
Since thenFinal written decision June 22, 2026; now on appeal.
NextBoard denied institution September 8, 2025, 59 days later.
NextInstituted September 16, 2025, 62 days later.
Since thenSettled September 8, 2026.
NextInstituted September 19, 2025, 65 days later.
Since thenODP still lists an instituted trial.
NextTerminated October 1, 2025, before institution.
NextBoard denied institution October 20, 2025, 46 days later.
NextBoard denied institution November 4, 2025, 60 days later.
Status of the lead case only, from the USPTO Open Data Portal on October 15, 2026. The reasons for the three Board denials and the Amgen termination have not been read.
So after referral: four instituted, three denied by the Board, one terminated before institution.
Part 5 of 7
Every one of those next steps came before the designation. The Board denied LifeVac, Home Depot and Allani between September and November 2025. The Office designated the referrals on January 9, 2026.
The tempting reading
The Office designated this referral, so the petition must have been strong.
What the record shows
The Office designated these decisions for how they weigh discretion: trial dates, settled expectations, earlier petitions. Three of the eight had already been denied by the Board when they were designated. A designated referral says nothing about the merits.
That is what a designation is for. It tells practitioners how the Director reasons about discretion. It doesn’t vouch for the petition.
Part 6 of 7
Choose your side.
Part 7 of 7
These eight are designated cases, chosen for their reasoning, not a random sample of referrals. The Office’s FY2026 numbers suggest the odds after referral can be higher.
The two FY2026 rates describe different groups of decisions, so multiplying them does not give an end-to-end rate. Eight is a small base: one case moves the rate by 12.5 points.
Source
The 2025 process these referrals followed is not the one petitions face today. The reasoning in the decisions still guides how the Director weighs discretion; the two-panel sequence does not.
The takeaway
A referral answers one question. Tell the client which one, and what is still open.
Each item is marked in the story with a dashed outline. We update the story when the official record confirms or corrects it.
Precedential decisions bind the Board within their designated scope. Informative decisions show the Office’s reasoning but do not bind the Board. Court opinions are cited for what they decided; later history was checked on the date shown above.