Discretionary Denials 2.0 — The Litigator’s IPR Playbook Under the New PTAB Regime
In March, the U.S. Patent and Trademark Office issued its “Interim Process for PTAB Workload Management” memorandum — quickly dubbed the “Workload Memo.” The memo resurrects and expands the PTAB’s discretion to deny institution for reasons that have little to do with the prior art. By July 31, the acting director had already logged 109 discretionary-denial decisions, signaling a tectonic shift. For petitioners who count on IPRs to stall infringement suits — and patent owners who must decide where to fight — the new regime demands a strategic overhaul. This article distills what has changed, why it matters and how litigators should adapt.