Why Fewer People Are Challenging Bad Patents

This sharp reduction shouldn't be celebrated. The PTAB serves as a crucial defense against low-quality software patents that are frequently used in lawsuits against individuals and companies. The decline isn't because patents have suddenly improved in quality, but rather because USPTO leadership is increasingly rejecting legitimate challenges for reasons unrelated to their merits.

The IPR process was established to allow people to challenge patents at the Patent Office instead of facing expensive federal court litigation. It represents one of the most effective methods for removing flawed patents from the system. In September 2026 alone, only 37 IPR petitions were filed, compared to 129 in December 2024—the last full month before current USPTO leadership began reshaping how the Board handles patent challenges.

Declining Institution Rates

Between fiscal years 2022 and 2024, the PTAB instituted between 66% and 68% of IPR petitions. By fiscal year 2026 (which ended in September 2026), this rate had fallen dramatically to just 41%. Institution only means the PTAB has agreed to hear a challenge, not that the challenger will win or that the patent will be invalidated.

Preparing an IPR petition requires substantial time and money, including prior art searches, expert hiring, and developing detailed technical and legal arguments. Companies were willing to invest in IPRs because they could expect a predictable process where petitions meeting statutory standards would generally be heard on their merits.

Director's Unprecedented Intervention

Even when the PTAB decides to hear an IPR case, the process is no longer guaranteed to continue. USPTO Director John Squires has vacated at least 29 decisions granting institution of IPR proceedings, subsequently denying the petitions and terminating those proceedings before a final written decision.

This retroactive intervention is unprecedented. In some cases, parties had already invested substantial resources before having their proceedings terminated based on new reasoning from the Director's office that arose after institution. For example, in Revvo Technologies v. Cerebrum Sensor Technologies, the Director vacated an institution decision, the Board reinstated it, and then the Director reversed again using a new approach regarding inconsistencies in claim construction positions.

Congress's Intent Undermined

Congress created IPRs in 2012 partly because challenging patents in federal court is extraordinarily expensive and risky. The administrative process was designed to correct inevitable mistakes made by patent examiners working under time constraints. Since 2012, IPRs have helped invalidate thousands of patent claims that never should have been issued, protecting startups, software developers, nonprofits, and small businesses.

Patent trolls routinely target small businesses and independent developers, including podcasters, retailers, coffee shops, and nonprofits. These organizations lack the resources to defend against potentially invalid patents in federal court. IPR offers a chance to challenge these patents before litigation costs become overwhelming.

The current developments send a troubling message to potential users of the PTAB: don't bother. While the PTAB doesn't need to institute every petition, it must provide a transparent, predictable, and fair process. If companies, individuals, and nonprofits conclude that IPRs aren't worth pursuing, more weak patents will survive, and patent trolls will use them to force expensive litigation or settlements.