For patent owners and applicants in Asia and Europe who access the U.S. market — and for investors assessing IP portfolios globally — the evolving posture of the Patent Trial and Appeal Board (PTAB) and the United States Patent and Trademark Office (USPTO) is critically important. Over recent years, the PTAB’s high invalidation-and-institution rates have unsettled many stakeholders. But recent initiatives under Director Squires suggest a structural shift that may make certain patents harder to challenge in post-grant settings — thereby strengthening the value of well-crafted patents.
This article explores that evolving environment and explains how counsel should adapt strategy accordingly.
Background: High Invalidation Rates and Institutional Pressure
Historically, for patents challenged at the PTAB, the statistics were sobering: studies report all-challenged-claims invalidation rates around 70% for instituted cases. These high invalidation rates created significant uncertainty for patent owners, particularly those seeking to enforce their rights or attract investment based on patent portfolios.
Institution rates (i.e., the percentage of petitions that the PTAB institutes) also increased, meaning many patents faced review. These statistics produced the perception — and reality — that U.S. patents, once asserted, carried significant risks of post-grant invalidation. For portfolio owners (particularly non-U.S. entities entering the U.S.), this created a “patent defence” mindset rather than a “patent value” mindset.
Director Squires and Procedural Recalibration
Recent developments point to a recalibration in the U.S. post-grant validity ecosystem. These changes represent the most significant shift in PTAB practice since the America Invents Act established post-grant review proceedings, potentially reshaping how patent owners and challengers approach validity disputes.
On October 17, 2025, Director Squires announced that the authority to decide whether to institute trials (under the America Invents Act or “AIA” review proceedings) would reside personally with the Director, rather than delegating that decision to PTAB panels. The USPTO simultaneously proposed rule changes to restrict institutions in cases where validity has already been (or soon will be) litigated in court, and to insert commitment/stipulation requirements for petitioners.
More broadly, discretionary denials of institutions have increased in 2025: one analysis showed institutions declining to around 44% in a given period. These changes suggest that patent challengers may now face higher thresholds at the institution stage — meaning fewer post-grant review proceedings will launch, and thus less opportunity to attack patents via PTAB.
Strategic Implications: Why Some Patents May Be Harder to Invalidate
Increased Focus on Pre-Institution Filtering
Because institution decisions may now emphasize discretionary factors (e.g., parallel litigation, timing, duplicative challenges), petitioners must do more upfront diligence and strategy — making it harder to “shop” for easy invalidation venues. Patent challengers can no longer rely on PTAB as an almost automatic forum for testing patent validity.
Stronger Patents Benefit More from New Framework
In a more restrictive institution environment, patents with strong prosecution records, robust claim construction and solid prior-art groundwork may enjoy a longer lifespan and greater enforceability. This increases the reward side for investing in quality patents early, creating a clearer incentive structure for comprehensive prosecution strategies.
Non-U.S. Applicants: U.S. Patents as Portfolio Anchors
For non-U.S. clients, the U.S. patent remains a pivotal jurisdiction. If post-grant risk is moderating, the U.S. patent becomes an even more desirable asset — both for licensing and enforcement. Thus, global portfolio strategy should reflect this potential shift in relative value across jurisdictions.
Strategic Recommendations for Patent Portfolio Management
Front-load quality: Invest early in claim drafting, prosecution history, prior-art searching, and written description/enablement support. A strong front-end means your patent will be better placed in any forum (PTAB, district court, ITC, EPO, UPC).
Global coordination: When advising non-U.S. clients, embed U.S. strategy within the global portfolio: recognize that the U.S. patent may have enhanced relative value in a shifting U.S. post-grant landscape.
Assertive enforcement strategy: With potentially lower invalidation risk, clients may feel more confident in asserting U.S. patents — but only if your portfolio is solid and you manage the litigation/enforcement costs.
Watch procedural reforms: Stay informed on the USPTO’s rulemaking, especially around institution criteria, petitioner commitments, and forum choice. These procedural factors may affect timing, cost, and strategy of validity challenges.
Scenario planning: For clients considering entering the U.S. market, run scenarios that account for improved patent strength, but also maintain contingency plans for invalidity strategies (defensive portfolios, cross-licensing, global diversification).
Capitalizing on the Evolving Patent Landscape
For global players and middle-market entities operating across Asia, Europe and the U.S., this is a moment to recalibrate: stronger patents may now offer not just protection, but real value and durability. By aligning filing strategy, prosecution diligence and enforcement planning accordingly, counsel can help clients capture that opportunity — while remaining vigilant about evolving procedural headwinds.
The shift toward more selective PTAB institution represents a meaningful change in the U.S. patent ecosystem that rewards quality prosecution and strategic portfolio development. Companies that recognize this transition early and adjust their patent strategies accordingly will gain competitive advantages in licensing, enforcement, and overall portfolio value.
Ready to strengthen your patent portfolio strategy? We advise startups, middle-market companies, and funders on global patent protection strategies, due diligence and valuation, and commercial negotiations. Contact our intellectual property experts at CrossBorder IP to schedule a consultation and optimize your patent portfolio for the evolving PTAB landscape.