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ARTICLE · 15 SEPTEMBER 2025

Navigating The New Discretionary Denial Bifurcated Framework

Jones Day
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If the Director exercises discretion to deny institution, the petitioner may file a request for rehearing or Director Review within 30 days of the Director's decision.

United StatesIntellectual Property
Matthew Johnson
Matthew Johnson
Pranita Dhungana
Pranita Dhungana
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The USPTO recently published a new webpage on the Interim Director Discretionary Process, which provides information regarding the bifurcated process for consideration of discretionary denial issues announced in the March 26, 2025 Process Memorandum. Under the Process Memorandum, decisions on whether to institute IPR and PGR are bifurcated between (i) discretionary considerations, and (ii) merits and other non-discretionary considerations.

The process for discretionary considerations begins once the PTAB issues a Notice of Filing Date Accorded and accepts a patent owner's Mandatory Notice. At that point, a new paper type, "PO Discretionary Denial Brief," becomes available. A patent owner may file its discretionary denial brief within two months of the Notice date. Once the patent owner's brief is filed, another new paper type, "PET Opposition to Discretionary Denial Brief," becomes available, which allows the petitioner to respond within one month of the

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