"Settled-Expectations" Analysis May Leave Some Petitioners Feeling Unsettled

As discretionary denials are on the rise and institution rates are declining at the PTAB (link), recent decisions from the PTAB have introduced the notion of a patent owner's "settled expectations" as another reason for the PTAB to exercise discretion and deny institution. Dabico Airport Solns. Inc. v. AXA Power ApS, IPR2025-00408, Decision, Paper 21 (June 18, 2025). In Dabico, the patent owner requested a discretionary denial under Sections 325(d) and/or 314(a), arguing that the art presented in the petition was substantively identical to that before the Examiner during prosecution, that the petitioner did not allege any Examiner error, and that the petition overall "lack[ed] substantive merit." Id., Patent Owner Request, Paper 10 (April 28, 2025). In response, petitioner argued that because there was no pending parallel litigation, no multiple or serial petitions against the challenged patent, and the petition included different prior art not previously presented to