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.

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LexDana Editorial
July 29, 2026PTAB1 min read

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.

StageWhat decides it
InstitutionMerits and discretion
Final written decisionMerits

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