# Past the Director is not past the Board. 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. Sources checked October 16, 2026 **4 of 8** referred lead cases went on to trial. Three were denied by the Board; one ended before institution. ## Before you read The Director referred eight petitions past discretionary denial, and the Office later designated those referrals. How many went to trial? - All eight - Six - Four - Two Four. The Board denied three on the merits stage, and one petition was terminated before institution. ## Forty-six days On September 4, 2025, the Director declined to deny Home Depot’s petition against an H2 Intellect patent and referred it to the Board. Home Depot, pp. 2–3 Forty-six days later, the Board denied institution. ODP status 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. ## Two decisions 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.” Home Depot 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. Director institution memo ## The batch 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. Elong Amgen v. BMS ## After the referral Here is what happened to each referred lead case, according to the USPTO’s Open Data Portal as of October 15, 2026. ODP status Filter by outcome. So after referral: four instituted, three denied by the Board, one terminated before institution. ## Read the dates 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. That is what a designation is for. It tells practitioners how the Director reasons about discretion. It doesn’t vouch for the petition. ## What to do Choose your side. ## Cuts the other way 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 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. ## Related stories - [Thirteen rulings, thirteen deciding facts.](https://postgrantproceeding.com/insights/d18-thirteen-rulings-thirteen-deciding-facts) - [Age starts the argument. It doesn’t end it.](https://postgrantproceeding.com/insights/d03-age-starts-the-argument-it-doesnt-end-it) - [An IPR has two gates. Don’t multiply them.](https://postgrantproceeding.com/insights/t05-an-ipr-has-two-gates-dont-multiply-them) ## Sources - S05. Home Depot U.S.A., Inc. v. H2 Intellect LLC, No. IPR2025-00480, Paper 11 (USPTO Director September 4, 2025) (informative, designated Jan. 9, 2026). https://www.uspto.gov/sites/default/files/documents/IPR2025_00480_paper_11.pdf - S54. LifeVac LLC v. DCSTAR Inc., No. IPR2025-00454, Paper 11 (USPTO Director July 11, 2025) (precedential, designated Jan. 9, 2026). https://www.uspto.gov/patents/ptab/precedential-informative-decisions - S07. Apple Inc. v. Ferid Allani, No. IPR2025-00856, Paper 11 (USPTO Director September 5, 2025) (informative, designated Jan. 9, 2026). https://www.uspto.gov/sites/default/files/documents/IPR2025_00856_paper_11.pdf - S55. Amgen Inc. v. Bristol-Myers Squibb Co., No. IPR2025-00601, Paper 9 (USPTO Director July 24, 2025), also covering IPR2025-00602 and -00603 (informative, designated Jan. 9, 2026). https://www.uspto.gov/patents/ptab/precedential-informative-decisions - S12. Multi-Color Corp. v. Brook & Whittle Ltd., No. PGR2025-00025, Paper 10 (USPTO Director July 16, 2025) (precedential, designated Jan. 9, 2026). https://www.uspto.gov/sites/default/files/documents/PGR2025_00025_paper_10.pdf - S56. Padagis US LLC v. Neurelis, Inc., No. IPR2025-00464, Paper 12 (USPTO Director July 16, 2025), also covering IPR2025-00465 and -00466 (informative, designated Jan. 9, 2026). https://www.uspto.gov/patents/ptab/precedential-informative-decisions - S11. Savant Techs. LLC d/b/a GE Lighting v. Feit Electric Co., Inc., No. IPR2025-00260, Paper 16 (USPTO Director June 12, 2025) (informative, designated Jan. 9, 2026). https://www.uspto.gov/sites/default/files/documents/IPR2025_00260_paper_16.pdf - S57. Tesla, Inc. v. Intellectual Ventures II LLC, No. IPR2025-00217, Paper 9 (USPTO Director June 13, 2025) (informative, designated Jan. 9, 2026). https://www.uspto.gov/patents/ptab/precedential-informative-decisions - S10. Elong Int’l USA Inc. v. Feit Electric Co., Inc., No. IPR2025-00258, Paper 16 (USPTO Director June 25, 2025) (precedential, designated Jan. 9, 2026). https://www.uspto.gov/sites/default/files/documents/IPR2025_00258_paper_16.pdf - S58. Realtek Semiconductor Corp. v. ParkerVision, Inc., No. IPR2025-00324, Paper 11 (USPTO Director June 25, 2025), also covering IPR2025-00325 (precedential, designated Jan. 9, 2026). https://www.uspto.gov/patents/ptab/precedential-informative-decisions - S09. Alliance Laundry Sys., LLC v. PayRange LLC, No. IPR2025-00950, Paper 11 (USPTO Director September 19, 2025) (informative, designated Jan. 9, 2026). https://www.uspto.gov/sites/default/files/documents/IPR2025_00950_paper_11.pdf - S08. Dabico Airport Sols. Inc. v. AXA Power ApS, No. IPR2025-00408, Paper 21 (USPTO Director June 18, 2025) (informative, designated Jan. 9, 2026). https://www.uspto.gov/sites/default/files/documents/IPR2025_00408_paper_21.pdf - S36. Sun Pharm. Indus., Inc. v. Nivagen Pharm., Inc., No. IPR2025-00893, Paper 18 (USPTO Director September 19, 2025) (informative, designated Jan. 9, 2026). https://www.uspto.gov/sites/default/files/documents/IPR2025_00893_paper_18.pdf - S06. USPTO, Director Institution of AIA Trial Proceedings (Oct. 17, 2025; effective Oct. 20, 2025). https://www.uspto.gov/sites/default/files/documents/Director_Institution_of_AIA_Trial_Proceedings.pdf - S48. USPTO, PTAB Trial Statistics, September 2026 (FY2026: Oct. 1, 2025 to Sept. 30, 2026). https://www.uspto.gov/sites/default/files/documents/trial_stats_september2026.pdf - S53. USPTO Open Data Portal: patent file-wrapper records for ex parte reexamination (90/ control numbers) and PTAB trial status, as pulled by PostGrantProceeding on Oct. 14 and 15, 2026. https://data.uspto.gov - S89. Inside Lighting, GE Lighting & LEDVANCE Win White Filament Patent Fight (Sept. 2026) (trade report on the final written decision in the consolidated IPRs on U.S. Patent No. 8,604,678). https://inside.lighting/news/26-09/ge-lighting-ledvance-win-white-filament-patent-fight ## Not yet confirmed - Whether that decision is the one in this petition, and its outcome, have not been confirmed from the official record. - The reasons for the three Board denials and the Amgen termination have not been read. 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. General information about published decisions, not legal advice. Reading it does not create an attorney-client relationship.