On March 11, 2026, USPTO Director John A. Squires issued a memorandum introducing new discretionary factors for the institution of inter partes review (“IPR”) and post-grant review (“PGR”) proceedings.
For the first time, the Director will weigh whether a petitioner’s or patent owner’s products are manufactured in the United States when deciding whether to institute a proceeding. Practitioners familiar with ITC litigation will recognize a parallel to the “domestic industry” requirement of 19 U.S.C. § 1337(a)—parties before the PTAB may now find that their U.S. manufacturing footprint will play a meaningful role in whether validity challenges move forward. The memo identifies three factors the Director will consider:
- the extent to which accused products are manufactured in the United States or relate to investments in domestic manufacturing;
- the extent to which competing products made or sold by the patent owner are manufactured domestically; and
- whether the petitioner is a small business sued for patent infringement.
The Director will look beyond final assembly to consider domestic component manufacturing, and the memo applies to all proceedings in which the patent owner’s discretionary brief deadline has not yet passed, meaning its effects will be felt almost immediately. The policy rationale draws on studies by the Departments of Commerce and Homeland Security regarding the economic and national security consequences of offshoring, as well as the observation that many of the frequent IPR petitioners are large companies that may lack a significant U.S. manufacturing presence.
How much weight these factors will carry remains to be seen. The memo frames the initiative partly as a data-gathering exercise, encouraging parties to identify relevant facts in their discretionary briefing. But at a minimum, patent owners now have a new tool in their discretionary denial toolkit, and petitioners—particularly large technology companies with global supply chains—should be prepared to address their domestic manufacturing activities in their filings.
Simply put, the road to institution at the PTAB has again gotten a little more complicated, and the conversation now extends well beyond the merits of patentability.
