# An IPR has two gates. Don’t multiply them.

In FY2026 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.

Sources checked October 16, 2026

**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%?

- Yes: 44% × 77%
- No: the two rates describe different groups of decisions
- Yes, but only for PGRs

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.

## 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. Director institution memo

## The tempting arithmetic

What the two numbers do show: in FY2026, more petitions were stopped at the discretionary gate (438) than at the merits gate (114). Trial statistics, slide 6

## What it means

## The takeaway

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

## Related stories

- [Past the Director is not past the Board.](https://postgrantproceeding.com/insights/d02-past-the-director-is-not-past-the-board)
- [Thirteen rulings, thirteen deciding facts.](https://postgrantproceeding.com/insights/d18-thirteen-rulings-thirteen-deciding-facts)
- [Bio/pharma petitions were instituted more often in FY2026.](https://postgrantproceeding.com/insights/t06-bio-pharma-petitions-were-instituted-more-often-in-fy2026)

## Sources

- 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
- 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

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.