The number of petitions being filed at the Patent Trial and Appeal Board (PTAB) has collapsed. That’s not reason for celebration. The PTAB is an important line of defense against low-quality software patents being used in lawsuits against people and companies.
The drop didn’t happen because suddenly patents have become higher quality. It’s simply because USPTO leadership is increasingly refusing to consider good challenges to patents, for reasons unrelated to the merits. The process has become so unreliable that many would-be patent challengers aren’t even trying.
Inter partes review (IPR) is a process that allows people to challenge patents at the Patent Office, rather than having to fight an expensive lawsuit in federal court. It’s one of the most important ways to get bad patents out of the system.
In the third quarter of 2026, July through September, only 97 IPR petitions were filed at the PTAB, compared to 327 petitions during the same period in 2025. Similarly, only 37 IPR petitions were filed in September 2026, compared to 129 petitions in December 2024—the last full month before the current USPTO leadership began reshaping how the Board handles patent challenges.
This dramatic decline shouldn’t just concern patent lawyers. EFF has fought bad patents because so many software and internet patents make claims to the basic tools of free expression online, like sending email, using online ads, or publishing web pages. When bad patents go unchallenged, they affect everyone who cares about the freedom to write new code and make new technology.
That’s why EFF has defended IPR since it came on the scene more than a decade ago. It provides a faster and less expensive way to challenge patents that should never have been granted. Congress created IPRs because the Patent Office makes mistakes. District court litigation is an extraordinarily expensive way to correct them. Without a meaningful administrative review process, bad patents remain powerful weapons in the hands of patent trolls and others seeking to extract settlements from companies that often did nothing wrong.
Now, USPTO leadership is dismantling that safeguard.
Petitions and Institution Rates Are Falling
Since Congress created the IPR patent challenge process in 2012, the PTAB has always had some discretion in deciding which petitions deserve review. But institution rates today are much lower than their typical historical range.
Between fiscal years 2022 and 2024, the PTAB instituted between 66% and 68% of IPR petitions. In fiscal year 2026, which concluded in September 2026, the institution rate fell to 41%. And institution is only the first step of an IPR—it means the PTAB has agreed to hear the challenge, not that the challenger won, and the patent will be invalidated.
That decline helps explain why fewer petitions are being filed in the first place. Preparing an IPR petition takes substantial time and money. While cheaper than federal court, it’s still a complicated administrative process. Before filing, a challenger typically needs to search for prior art, hire experts, and develop detailed technical and legal arguments about why the patent never should have been granted.
Companies were willing to pay for IPRs because, historically, they could expect a predictable process. Petitions that met the statutory standard generally had a reasonable prospect of being heard and decided on the merits. But the USPTO has made it harder to get petitions heard and is throwing them out for reasons that have nothing to do with the merits of the challenges. Faced with these odds, many potential challengers aren’t filing at all.
Even After a Challenge Is Accepted, The USPTO Director Can Cancel It
When the PTAB decides to hear an IPR case, that means the petition has been “instituted”—but that has never meant that the petitioner will definitely win. It means the PTAB has determined the challenge warrants a full merits review, and the parties could expect the proceeding to continue toward a final written decision. But under the current USPTO leadership, that expectation has disappeared. The PTAB’s institution decisions are being repeatedly vacated by the Director.
USPTO Director John Squires has vacated at least 29 decisions granting institution of IPR proceedings, and subsequently denied the petitions, terminating those proceedings before a final written decision. These include cases that PTAB judges had already agreed to hear, as well as proceedings that Squires himself had previously allowed to proceed. This level of retroactive intervention is unprecedented.
In some cases, the parties had already invested substantial time and money litigating before the PTAB, only to have the proceeding terminated based on new reasoning by the Director’s office that arose after institution.
For example, in Revvo Technologies v. Cerebrum Sensor Technologies, the Director vacated an institution decision and remanded the case to the Board. The Board then instituted review again, but the Director reversed that decision. Using a new approach, the Director said that the petition had inconsistencies between claim construction positions taken before the PTAB and in district court. Since then, that decision has been cited as a basis for terminating several other instituted proceedings.
The result is another layer of uncertainty for people who want to challenge bad patents. Getting through the front door of an institution decision is much harder than it used to be—and now, even getting through that door doesn’t mean the PTAB will decide your challenge. Predictability is one of the things that made IPRs work.
Congress Created the PTAB To Avoid Costly Litigation
Congress created IPRs in part because challenging a questionable patent in federal court is enormously expensive and risky. Patent examiners work under serious time constraints, and some patents that shouldn’t have been granted will inevitably issue. Not every patent dispute requires years of expensive district court litigation. Congress recognized that, and created an administrative process, staffed with experts more capable of correcting those mistakes.
That system has benefited the public. Since 2012, it has helped invalidate thousands of patent claims that never should have been issued. The IPR process has protected startups, software developers, nonprofits, and small businesses that otherwise would have faced crushing litigation costs simply for building products or offering services that use everyday internet technology.
EFF supports a balanced IPR system because it should be easier to fight against bogus patents that should never have been issued. The cost of fighting a patent can be a weapon in itself, and weak patents don’t just burden large technology companies. Patent trolls routinely target small businesses and independent developers, and have gone after podcasters, retailers, and even coffee shops and nonprofits. These organizations have neither the resources nor the desire to spend years litigating over potentially invalid patents in federal court. IPR offers a chance to challenge those patents before litigation costs get out of control.
If we weaken the IPR system, bad patents become much harder and more expensive to challenge.
We Shouldn’t Accept This as the New Normal
Some defenders of the current approach argue that lower institution rates reflect more balance in the patent system. But institution rates at the PTAB have plummeted from 68% to 41% in just two years—a nearly 40% decline. IPR petition filings have reached historic lows. And even proceedings that have already been instituted can now be terminated months later, without a decision on the merits.
These developments send a troubling message to members of the public who might want to use the PTAB: don’t bother. The PTAB doesn’t need to institute every petition. But it does need to provide a process that is transparent, predictable, and fair. Right now, confidence in the system is disappearing.
If companies, individuals, and nonprofits conclude that IPRs aren’t worth pursuing, the consequences won’t stop at the PTAB. More weak patents that never should have been granted will survive, and patent trolls will use them. That means more defendants facing expensive district court litigation or paying settlements driven by the cost of litigation.
That’s not what Congress intended when it created IPRs. It should not become the PTAB’s “new normal.”