PTAB in 2026: What Practitioners Are Getting Wrong
Discretionary denial has quietly become the main event, and most petitions still read like it is 2019.
Institution rates have moved, but the reasoning behind them has moved further. The number most petitions still cite is the headline institution rate — and it has not been the operative number for two years.
The two-stage problem
A petition now has to survive two distinct readings. The first asks whether the art is good. The second asks whether the Board should spend its time on it at all.
- The first is a merits question, and petitions are generally good at it.
- The second is a discretion question, and petitions are generally silent on it.
What preparation looks like now
Work the parallel-litigation timeline into the petition itself rather than leaving it to a reply. By the time a reply lands, the discretionary question has usually already been framed by the other side.
| Stage | What decides it |
|---|---|
| Institution | Merits and discretion |
| Final written decision | Merits |
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