AI & Tech Innovators: Think Twice Before Relying on IPRs in Today's USPTO Climate

Federal Circuit Reaffirms Director's Broad IPR Denial Authority

The Federal Circuit's recent ruling in In re Motorola Solutions, Inc. (No. 2025-134, Nov. 6, 2025) (case link) reaffirms the USPTO Director's broad, largely unreviewable discretion to deny inter partes review (IPR) petitions—even after PTAB initial institution—under 35 U.S.C. § 314(d).

Recent Data Highlights the Heightened Risk

IPR Institution Far From Guaranteed

Under centralized Director review (late Oct–Dec 2025), rates have dropped to 0–4%, with only 4/105 instituted as of early Dec (101 denied), vs. historical ~67% average (per Patently-O analyses of USPTO notices) (see also additional analysis). FY2025 overall hit a 5-year low of ~50% amid soaring discretionary denials.

Discretionary Factors Dominate

The USPTO is more likely to deny challenges when there's already ongoing litigation in court (to avoid duplicating effort and conflicting decisions), when the patent has been around for many years (creating "settled expectations" that it should stand unchallenged), or when other policy reasons weigh against review—making outcomes much less predictable.

Cost & Resource Pressure

Preparing and filing an IPR petition alone often costs high five to low six figures (including attorney fees and official fees)—with denials now common early on, that's a significant sunk risk without any review.

Strategic Shift Needed

Early licensing, settlements, design-arounds, or stronger pre-filing invalidity positions may beat banking on IPRs. Challengers are pivoting to ex parte reexams (up sharply in 2025 per Unified Patents' Patent Dispute Report). Read the report

Proactive IP Strategy Is Critical

For AI startups and tech companies facing patent assertions (especially in fast-moving fields with parallel suits), proactive IP strategy is critical. Assess exposure now, don't wait for reactive filings. Equally important: build your own robust patent portfolio as leverage against patent-holding competitors. Strong, strategically aligned patents not only protect your innovations but serve as powerful defensive assets in negotiations, litigation deterrence, and even funding rounds—turning IP from protection into scalable value (see portfolio strategy guide).

Read the Bloomberg Law analysis by Nathan Brunette and Jonathan Barnard, JD: https://lnkd.in/eEqVDksv