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Feature3 min readPost-grant review · Inter partes review

A post-grant review gets a head start, not a finish line.

Two precedential decisions call post-grant review petitions favored. A post-grant review filed on the last day of its window was referred despite an earlier trial date, and went to trial. An inter partes review that leaned on the same principle cleared the Director, then was denied by the Board 59 days later.

Day 275Multi-Color filed its PGR on the last day of the nine-month window. It was instituted.

Before you read

What share of FY2026 PTAB petitions were PGRs?

Part 1 of 7

Day 275

Brook & Whittle’s patent issued on April 16, 2024. Multi-Color filed its post-grant review petition on January 16, 2025, the day the nine-month window closed. A Texas trial on the patent was set before the PGR’s final-decision date, a fact that weighs toward denial. The Director referred the petition anyway, and the Board instituted trial on September 19, 2025.

Multi-Color’s window

Jul ’242025Jul ’252026Jul ’26
The PGR
Texas court
Window closes
  1. 1Apr 16, 2024 · The PGRPatent issues; nine-month window opens
  2. 2Jan 16, 2025 · The PGRPGR petition filed, day 275The last day of the window.
  3. 3Jul 16, 2025 · The PGRDirector refers the petition
  4. 4Sep 19, 2025 · The PGRBoard institutes trial, 65 days later
  5. 5Sep 21, 2026 · The PGRFinal decision due
  6. 6May 18, 2026 · Texas courtTrial date setAbout four months before the PGR’s final-decision date.

Source

Part 2 of 7

What a PGR is

A post-grant review is the PTAB’s broadest validity challenge. An IPR is limited to anticipation and obviousness based on patents and printed publications. A PGR can raise any invalidity ground under 35 U.S.C. § 282(b)(2) or (3), including eligibility and written description. The catch is timing: the petition must be filed within nine months of grant.

IPR and PGR side by side

IPRPGR
GroundsAnticipation and obviousness over patents and printed publicationsAny ground under § 282(b)(2) or (3)
WhenAfter the PGR windowWithin nine months of grant
Estoppel after a final decisionGrounds raised or reasonably could have raisedThe same, across the wider set of grounds

35 U.S.C. §§ 311(b), 315(e), 321(b)–(c), 325(e).

PGRs are a small share of the docket.

FY2026 PTAB petitions

500 petitions, Oct 1, 2025 to Sep 30, 2026

Tap a segment to read what it covers.

Source

Part 3 of 7

Favored, in the Office’s words

Both decisions use the same sentence.

“[Petitions for post-grant review] are favored because they must be filed no later than nine months from the grant of the patent (35 U.S.C. § 321(c)), are close in time to examination, and occur before expectations in the patent rights are strongly settled.”
Multi-Color v. Brook & Whittle and LifeVac v. DCSTAR (precedential)

The reasoning ties into settled expectations. A PGR, by definition, comes before anyone has had years to build on the patent.

Part 4 of 7

The edge outweighed a trial date

Multi-Color’s facts pointed both ways, and the decision says so.

Toward denialMay 18, 2026

The patent was in two court cases. The Texas trial was set about four months before the September 21, 2026 final-decision date.

Against denialDay 275

Multi-Color wasn’t a party to either case and said it had no substantive relationship with any defendant. The Delaware case had no trial date. And the petition was filed within nine months of grant.

The Director found the factors against denial outweighed those for it and referred the petition on July 16, 2025. The Board instituted trial 65 days later.

Part 5 of 7

Past the Director, then denied

LifeVac shows the limit. LifeVac had challenged the same patent in a PGR, and the Board denied institution on the merits on November 29, 2023. When LifeVac came back with an IPR, the owner argued it was a repeat attack.

LifeVac, in four steps

  1. 1Nov 29, 2023First try: a PGRThe Board denies institution on the merits (PGR2023-00032).
  2. 2NextSecond try: an IPRThe owner calls it a repeat attack.
  3. 3Jul 11, 2025The Director refersA non-instituted PGR generally won’t support discretionary denial of a later IPR.
  4. 4Sep 8, 2025The Board deniesInstitution denied, 59 days after the referral.
Step 1 of 4
The OfficeCourtThe turn

The Director disagreed with the owner. The earlier challenge “did not result in a final written decision,” and because PGRs are favored, “petitions for inter partes review will generally not be discretionarily denied because of an earlier petition for post-grant review when the post-grant review was not instituted.”

Fifty-nine days later, the Board denied institution. The Board’s reasons have not been read. The favored status got LifeVac past discretionary review. It didn’t decide the merits.

Part 6 of 7

What to do

Choose your side.

  • Set a calendar trigger at issuance for competitor patents that matter. Multi-Color filed on day 275, the last day of its window.
  • Name the person who decides whether to file, not just the person who watches the patent. The window is short.
  • If you have grounds beyond prior art, a PGR is the only PTAB proceeding that can hear them, and it brings the discretionary-stage edge.
  • Don’t treat favored status as a merits signal. LifeVac’s IPR was referred, then denied 59 days later.

Part 7 of 7

Cuts the other way

Both decisions are precedential, so the favored framing binds the Board at the discretionary stage. It says nothing about the merits, and two decisions are a thin base.

What “favored” does

It does

  • Weigh against discretionary denial of a timely PGR (Multi-Color)
  • Keep a failed, non-instituted PGR from sinking a later IPR at the discretionary stage (LifeVac)

It doesn’t

  • Decide institution on the merits: LifeVac was denied by the Board
  • Reduce estoppel: after a PGR final decision, the petitioner can’t pursue any ground it raised or reasonably could have raised
  • Tell you how PGRs fare: 48 petitions shows volume, not success

The wider grounds also widen the risk. After a PGR final written decision, the petitioner may not pursue before the Office any ground it “raised or reasonably could have raised during that post-grant review.”

The takeaway

Calendar the nine-month window at issuance. The edge it buys is real, and it ends at the merits.

Sources

  1. S12Multi-Color Corp. v. Brook & Whittle Ltd., No. PGR2025-00025, Paper 10 (USPTO Director July 16, 2025) (precedential, designated Jan. 9, 2026). Official source ↗
  2. S54LifeVac LLC v. DCSTAR Inc., No. IPR2025-00454, Paper 11 (USPTO Director July 11, 2025) (precedential, designated Jan. 9, 2026). USPTO list ↗
  3. S13Federal patent statutes, 35 U.S.C. §§ 253(a), 303(a), 311–315, 317 and 321–325. Reproduced in MPEP Appendix L (currency date stated by the appendix: Jan. 31, 2024). Official page ↗
  4. S48USPTO, PTAB Trial Statistics, September 2026 (FY2026: Oct. 1, 2025 to Sept. 30, 2026). Data source ↗
  5. S53USPTO 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. Data source ↗

Not yet confirmed

  • The Board’s reasons 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.

Changes (5)
  • New headline and a to-scale timeline of Multi-Color’s nine-month window, referral and institution against the Texas trial date.
  • LifeVac correctly described as an IPR that benefited from the PGR principle because its earlier challenge was a non-instituted PGR.
  • FY2026 PGR share (48 of 500) re-checked against USPTO Trial Statistics, Sept 2026, slide 3.
  • Board’s reasons for denying LifeVac flagged (not read).
  • Removed the original’s reference to “the story on patent age”; the link now appears under Related stories.
General information about published decisions, not legal advice. Reading it does not create an attorney-client relationship.
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