In Fiscal Year 2026 the Director referred 344 of 782 petitions past discretionary review (44%), and 379 of 493 merits decisions granted institution (77%). The two figures come from different sets of decisions, so 44% times 77% is nobody’s odds.
Before you read
The Director referred 44% of petitions, and 77% of merits decisions granted institution. Is the end-to-end chance about 34%?
No. The USPTO doesn’t say the two figures are one cohort of petitions in one period, so the product isn’t an end-to-end rate.
Part 1 of 3
Every IPR or PGR petition now passes two separate considerations before trial. The first is discretionary: should the Office refuse the petition for reasons other than the merits, such as a parallel trial date, the patent’s age or earlier petitions? The second is the merits: is there a reasonable likelihood the petitioner will prevail on at least one claim? Since October 20, 2025, the Director decides both, usually in a summary notice.
FY2026: October 1, 2025 to September 30, 2026. The slide labels the groups “Director’s Discretionary Considerations” and “Merits or Other Considerations.”
Source
Part 2 of 3
The tempting reading
44% × 77% ≈ 34%, so about a third of petitions get instituted.
Why it doesn’t work
The two rates describe different groups of decisions, and the slide doesn’t say they are one cohort. For example, a petition referred late in one fiscal year may get its merits decision in the next. The product is not an end-to-end rate for any petition.
What the two numbers do show: in FY2026, more petitions were stopped at the discretionary gate (438) than at the merits gate (114).
Part 3 of 3
The takeaway
Quote each gate with its own denominator. The product isn’t a probability.
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.