USPTO Policy Shift: New Discretionary Factors Favor U.S. Manufacturing in IPR/PGR
In a significant memo issued March 11, 2026, USPTO Director Squires introduced additional discretionary considerations for instituting inter partes review (IPR) and post-grant review (PGR) proceedings, citing the statutory mandate to evaluate impacts on the economy, the integrity of the patent system, efficient administration, and timely proceedings.
The new framework instructs the Director to weigh three key factors in institution decisions: (1) the extent to which products accused of infringement in a parallel proceeding are manufactured in the United States or tied to investments in American manufacturing operations; (2) the extent to which the patent owner’s competing products—those made, sold, or licensed—are manufactured domestically; and (3) whether the petitioner qualifies as a small business that has been sued for infringement of the patent at issue. Manufacturing evaluations extend beyond final assembly to include domestic production of components and further processing. Method claims are assessed based on the devices used to perform them. These considerations apply immediately to pending cases and strongly encourage parties to submit detailed facts on domestic manufacturing ties and small-business status.
This shift creates meaningful strategic advantages for companies maintaining strong U.S. operations by tilting institution outcomes toward protecting domestic economic activity. Under the new framework, it is prudent for both patent holders and challengers to evaluate relative U.S. economic impact of the patent(s) and product(s) at issue as part of their IP strategy.