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Data insight1 min readInter partes review · Post-grant review

An inter partes review has two gates. Don’t multiply them.

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.

44% · 77%referred past discretionary review, and granted on the merits, in FY2026. Two different groups of decisions.

Before you read

The Director referred 44% of petitions, and 77% of merits decisions granted institution. Is the end-to-end chance about 34%?

Part 1 of 3

Two gates

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, gate by gate

Gate 1: past discretionary review344 referred of 782 discretionary decisions
44%
Gate 2: granted on the merits379 granted of 493 merits decisions
77%

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 arithmetic

Don’t multiply

The tempting reading

44% × 77% ≈ 34%, so about a third of petitions get instituted.

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

What it means

  • Budget for both gates. A strong merits case doesn’t help if the petition is denied at the first.
  • Quote each rate with its own denominator when you advise a client.

The takeaway

Quote each gate with its own denominator. The product isn’t a probability.

Sources

  1. S48USPTO, PTAB Trial Statistics, September 2026 (FY2026: Oct. 1, 2025 to Sept. 30, 2026). Data source ↗
  2. S06USPTO, Director Institution of AIA Trial Proceedings (Oct. 17, 2025; effective Oct. 20, 2025). Official page ↗

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 (4)
  • Figures re-checked against USPTO Trial Statistics, Sept 2026, slide 6: 344 referred and 438 denied of 782; 379 granted and 114 denied of 493.
  • Dated the process: since October 20, 2025, the Director decides institution, weighing discretion and merits together, usually by summary notice. FY2026 covers October 1, 2025 to September 30, 2026, so nearly all of it falls under the new process. The original said “now” without a date.
  • Glossed the two stages in plain English; new interactive “don’t multiply” check.
  • Internal file path removed.
General information about published decisions, not legal advice. Reading it does not create an attorney-client relationship.
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