PTAB Bar Association files amicus brief in Intel Corp. v. Squires

On Monday, August 17, 2026, the PTAB Bar Association filed an amicus curiae brief supporting the petition for certiorari in Intel Corp. v. Squires, No. 26-73.  A copy of the brief is available at this link.  

The Association’s central argument is that the USPTO’s recently developed institution practices for AIA reviews—inter partes review (IPR) and post-grant review (PGR)— are effectively insulated from judicial review.  The Federal Circuit’s recent decisions interpreting the scope of 35 U.S.C. § 314(d) leave no forum in which the legality of the USPTO’s institution practices can be challenged and reviewed.  Mandamus has been narrowed nearly to the vanishing point, and the ruling under review turns away even a forward-looking Administrative Procedure Act suit aimed at the USPTO’s discretionary institution practices. 
 
The Association’s amicus brief elucidates how quickly and overwhelmingly the USPTO’s practices have shifted:  from the Fintiv factors; to guidance narrowing those factors’ use; to rescission of that guidance; to transfer of institution authority to the Director alone; to adoption of new discretionary considerations; to denials without explanations; and to a proposed rule making certain denials categorical.  Due to these new policies, the institution rates have dropped drastically from 68% in fiscal year 2024 to 38% in fiscal year 2026, and the number of monthly IPR petitions has decreased significantly.  The USPTO is limited by the confines of the authority granted to the agency by Congress.  The Association’s brief argues that Congress enacted § 314(a) as a ceiling on the USPTO’s institution practices rather than a source of unfettered authority.  
 
The Association’s brief does not request that any individual institution decision be reopened for appeal.  Rather, the brief requests that SCOTUS consider the legality of the USPTO’s recent practices governing AIA institution decisions and the reviewability of those practices by the judicial branch.  As a large bar association focused on PTAB practice, with members that represent both challengers and patent owners, the Association’s request demonstrates an unease reaching well beyond the ranks of frequent petitioners.

The PTAB Bar Association was one of several briefs filed in the case. You can read Law360's coverage of the amicus briefs, including the PTAB Bar Association's brief, at this link.