PTAB institution fell to 41% in FY2026. What that means for continuation claims

Filings fell too. Only 500 petitions were filed in FY2026: 452 IPRs and 48 PGRs (p. 1). Fewer challengers are trying, and fewer of those who try get a trial.

Why did institution fall?

Two USPTO process changes, both in 2025.

• Mar. 26, 2025. Acting Director Stewart’s interim process split institution into a discretionary-denial briefing and a merits decision.
• Oct. 17, 2025. Director Squires’s memo moved the decision to the Director. He decides institution in every IPR and PGR, “in consultation with at least three PTAB judges,” usually by summary notice.

Discretion now does much of the work. In FY2026 the Director reviewed 782 petitions on discretionary grounds and denied 438 of them (56%). Of the 493 petitions decided on the merits, 379 (77%) were instituted (p. 6).

The same day as the memo, the USPTO proposed new IPR rules (90 FR 48335). They would bar IPR where the claims were already upheld elsewhere or where parallel litigation will likely finish first, and would require a petitioner stipulation. The comment period closed Dec. 2, 2025 (90 FR 50492). No final rule had appeared in the Federal Register as of Oct. 23, 2026.

Is the rate still falling?

No. “Collapsed” describes late 2025, not now. Institution was near zero in Oct.–Nov. 2025. The FY2026 rate through January 2026 was 37% (USPTO, Jan. 2026). From USPTO monthly data, IPWatchdog computed about 54% for July–Aug. 2026.

The process may change again. In Sept. 2026, IPWatchdog reported from unnamed sources that Director Squires told the judges he will hand institution back to PTAB panels. This is unconfirmed. We found no official USPTO notice.

What does this mean for an issued claim?

IPR has been the cheaper, faster route for an accused infringer to challenge a patent. When fewer petitions are instituted, that route is harder to use. On average, then, an issued claim is harder to challenge at the PTAB than it was before 2025.

That shifts the value toward claims that have actually issued. A pending application has no enforceable claims. A competitor that wants a newly issued claim cancelled may now find the PTAB harder to reach. For a family whose specification may support claims covering a competitor’s product, getting that continuation claim issued may be worth more than it was in 2024.

Keep three limits in view.

• The rate has partly recovered. Institution in mid-2026 looks closer to FY2025 than to late 2025, and the process may change again.
• District court remains. Invalidity is still a defense in litigation (35 U.S.C. 282(b)). A low PTAB rate does not make a claim valid.
• Support still decides. A continuation claim must find written description in the as-filed specification. A weakly supported claim is a weak claim in any forum.

How does this connect to continuation timing?

The value lies in an issued claim, so timing matters twice: you need a pending family to file in, and you need the claim to issue while conditions hold.

1. File before the window closes. A continuation must be filed while a family member is still pending, at the latest on the parent’s issue date. See the continuation deadline.
2. Consider Track One. Prioritized examination costs $4,515 plus a $150 processing fee (large entity) and must be requested at filing. The FY2026 USPTO dashboard shows about 4.9 months from grant of the request to final disposition. See Track One for continuations.
3. Map support first. Tie each claim limitation to paragraphs of the as-filed specification. See continuation strategy for competitor products.

These points are for review by your registered patent practitioner.