On March 11, 2026, USPTO Director Squires issued a memorandum that sets forth additional criteria for IPR and PGR petitioners and patent owners to consider in arguing whether petitions should be granted. Two of the new criteria focus on ties of patented technology to the United States. A third criterion considers the size of a petitioner who has been sued for infringement. These criteria will be part of a determination whether an IPR petition affects US patent system integrity, efficient USPTO administration, and the USPTO’s ability to handle IPRs and PGRs in timely fashion.
In explaining these new criteria, the Director noted that, according to recent statistics, an increasing amount of the US manufacturing base, particularly in electronics and computer industries, has left the US and gone overseas. The Director noted also that according to a USPTO study, many of the most frequent IPR and PGR petitioners do not have a significant manufacturing presence in the US, and do not intend to have one.
The adoption of these new criteria suggests strongly that, as part of deciding whether to discretionarily deny an IPR or PGR petition, the Director will look closely at whether a petitioner manufactures accused products in the US, and whether a patent owner’s technology entails investment in US manufacturing. Petitioner size would seem to indicate to the Director whether the petitioner is likely to be manufacturing in the US or overseas.
The upshot is that ties to US manufacturing likely will have a favorable impact on patent owners who make or license competing products that are manufactured in the US, and an unfavorable impact on petitioners who do not manufacture accused products in the US. Small business petitioners get a potential advantage over multinational petitioners by showing substantial US manufacturing or investment in US manufacturing.
This latest memorandum is another example of the Director thinking outside the box when it comes to discretionary denials, and provides another reason for both patent owners and petitioners to think creatively about how they approach advocating for or opposing discretionary denials.