By Doug Meier

Is The IPR Dead?

If you’ve been paying attention recently, you’ve likely heard: “IPRs are dead.”  It is a sentiment currently echoing through both the patent blogosphere and the halls of law firms.

Looking at the raw data from late 2025, IPR institution rates (i.e., the percentage of IPR petitions the Patent Trial and Appeal Board (PTAB) agrees to hear) have indeed softened.  The cost to reach a final written decision (FWD) has remained high, while predictability seems to have plummeted.

In this post, we explore where this “IPRs are dead” narrative has come from, whether there’s any truth to it, and strategic considerations for moving forward.

Short Answer: IPRs are still alive and well, but the strategy around them is evolving.  

It’s helpful to begin with a look at the history of IPRs and the PTO.  IPRs were introduced in 2012 as part of the America Invents Act, which was a significant overhaul of the U.S. patent system.  David Kappos, who served as the PTO Director from 2009 to 2013, oversaw this legal shift.  At that time, the IPR system was designed to be a precise, expert alternative to patent litigation. It promised to streamline the process of challenging the validity of patents without having to bear the heavy costs of patent litigation.  But under Michelle Lee, who was the Director of the PTO from 2014 to 2017, many patent owners and commentators believed the IPR system was weaponized into what former Chief Judge Rader famously called a “patent death squad,” because it seemed to heavily favor petitioners (in other words, challengers of the patents) and big tech.  Director Lee had previously been the Deputy General Counsel at Google, and many people believed she carried Silicon Valley’s general dislike of patents to the PTO.  The pendulum tried to swing back under Andrei Iancu, who served as the PTO Director from 2018 to 2021.  Director Iancu introduced the Fintiv factors in 2020 as a way for the PTAB to exercise its discretion to deny institution of an IPR because a parallel district court case is already moving quickly toward a trial.  Kathi Vidal, who was the Director of the PTO from 2022 to 2024, seemed to try to take a more middle-of-the-road approach on the use of IPRs to invalidate existing patents.

John Squires, the most recent (and current) Director of the PTO, was confirmed in September 2025.  Director Squires previously worked on Wall Street.  As a result, he sees the world not so much through the eyes of a bureaucrat but rather through the eyes of an asset manager, appearing to view patents as financial assets that require certainty to have value. In October 2025, Director Squires issued an open letter titled Bringing the USPTO Back to the Future, where he stated, referring to IPRs, that “experience has raised structural, perceptual, and procedural concerns inconsistent with the AIA’s design, clear language, and intent affecting, among other things, the public’s rightful expectation of impartiality.”

To understand the current “Squires Era,” we have to acknowledge that for the last decade, both patent owners and defendants have felt like they were the ones losing. The system didn’t seem to be working for anyone.

 

The Patent Owner’s Perspective: “The Recall Department”

For years, patent owners have felt they were sold a bill of goods. They played by the rules: they spent years in prosecution, paid their fees, negotiated with examiners, and received a patent from the US Government.  Then, when they tried to enforce that right, they faced the PTAB “Death Squad,” where many, many patents were invalidated.  Even if they survived one IPR, a well-funded defendant could simply file another IPR. And another.  It felt like double jeopardy. Why should the same agency that granted the patent (the PTO) be allowed to take it away so easily, over and over again? To patent owners, the IPR seemed like a weapon of mass destruction designed to devalue their R&D.

The Defendant’s Perspective: “The Ransom”

On the other side, defendants felt equally trapped. They were often sued on broad, vague patents that they believed never should have issued.  While the IPR was supposed to be a “cheaper” alternative to litigation for defendants, big law firm pricing turned it into a luxury product.  To ensure success, defendants found themselves filing multiple petitions (“shot-gunning”) to find the one argument that stuck.  Spending $450k+ just to ask the PTAB to look at a bad patent felt less like justice and more like a ransom.

IPR Estoppel and Ingenico

For years, the rule for IPR estoppel was relatively simple: An IPR petitioner cannot later re-challenge a patent’s validity based upon grounds that could have been raised in the IPR.  In other words, if you (the defendant) lost at the PTAB, you couldn’t use those same patents or publications to argue invalidity in District Court. But you could still use so-called “system art” in District Court.  You could argue invalidity at the PTAB using a reference describing a product, and then argue invalidity in District Court using the actual product.

In May 2025, the Federal Circuit’s decision in Ingenico seemed to open this door further by finding that estoppel applies only to specific statutory grounds available in IPR and not to the underlying prior-art references.  This made filing an IPR a relatively low-risk gamble.  If you lost at the PTAB, you could simply repackage your arguments and try again in District Court.

The “Squires Stipulation” (October 2025)

In October 2025, Director Squires issued Proposed Rules that sought to provide for “born-strong patents” with quiet title because of his concern that “even extremely strong patents become unreliable when subject to serial or parallel challenges.” Under the proposed new rules, to get their IPR instituted, IPR petitioners would be required to file a stipulation to not pursue any invalidity challenges under section 102 or 103 in other forums.  This would essentially force companies to choose whether they want to fight validity in the PTAB or in court.  It can no longer do both.

Additionally, the proposed rules state that the PTAB will not institute an IPR when the PTO or another forum has already adjudicated the validity of the claims or when another proceeding is likely to determine the validity of the claims first.

Putting this all together, the goal of the proposed rules is to give a defendant one shot at invalidating the patent claims.

Why “Dead” is the Wrong Word for IPRs

When lawyers or commenters say “the IPR is dead,” what they generally mean is that it may no longer make sense to file an IPR.  Defendants and big law firms thrived on a model where they would file an IPR and fight in the district court simultaneously, using the IPR as a backup chute.  Now it appears that the PTAB is moving away from allowing that backup chute, viewing it as a waste of government resources.

But if you have a single, “slam-dunk” piece of prior art, the IPR is still very much alive.  The door isn’t locked; it’s just that the price of admission is now a firm commitment to seeing it through in the PTAB.

The New Playbook for 2026

If you are a General Counsel sitting on a mid-sized budget, how do you navigate this landscape?  You stop paying for volume and start paying for precision.  IPRs should no longer be filed simply to “see what happens.”  You should focus your resources on a pre-filing search.  If you find art that is a 9/10, then file one perfect IPR petition.  In that scenario, you may be willing to make the stipulation because you are confident you will win.

The Re-Examination Renaissance.  While everyone mourns the IPR, an old tool is returning to glory: The Ex Parte Reexamination (EPR).  EPRs are significantly cheaper than IPRs, and they generally do not come with estoppel.  You can file an EPR and still fight in District Court. It is not subject to the proposed mandatory stipulations or discretionary denials.  For many mid-sized companies, EPRs may now be the superior tool for pressuring a plaintiff to settle without betting the farm.

Conclusion: Strategy Over “The Factory”

The rumor that IPRs are dead comes largely from firms that treated them as a commodity factory product.

At our firm, we view IPRs as just one tool in a larger toolbox. The goal isn’t to file an IPR; the goal is to resolve the dispute and get back to business.

It is true that the landscape in late 2025 is tougher for accused infringers. But it rewards those who do their homework. If you are tired of paying for the “shotgun approach” that no longer works, let’s talk about a sniper strategy that does.