Supreme Court Asked to Review USPTO Patent Review Rules
Owners of older patents should monitor this challenge, which could change how businesses defend against patent validity claims.
Updated on Sept. 20, 2026 in Remote Work
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Should patent regulators have broad discretion to reject legal challenges to older patents?
Legal groups have petitioned the U.S. Supreme Court to review the USPTO's practice of denying patent reviews based on settled expectations. The challenge follows a director-level policy of rejecting inter partes review for patents in force for at least six years.
Why it matters
This dispute centers on the USPTO's authority to limit patent challenges, directly impacting the ability of companies to contest potentially invalid competitors' patents. By challenging the settled expectations doctrine, petitioners aim to force a more standardized review process under the America Invents Act.
During July and August 2026, the PTAB saw 42 petitions instituted and 36 denied, reflecting a 54% institution rate compared to the 40% average seen through the first 11 months of fiscal year 2026. This activity follows the USPTO's application of a settled expectations rule for patents in force for six years.
The players
Kahoot AS!
A technology company that has challenged USPTO patent review policies in federal court.
U.S. Patent and Trademark Office
The federal agency responsible for granting patents and overseeing the PTAB patent review process.
John Squires
The Director of the USPTO who has overseen recent shifts in patent review decision-making authority.
PTAB Bar Association
An organization of legal professionals specializing in patent trial and appeal board proceedings.
The details
The USPTO Director has shifted authority for institution decisions back to Administrative Patent Judges after a period of director-led denials. The core of the dispute involves whether the agency exceeds its statutory authority under the America Invents Act by applying a 'settled expectations' doctrine. If the Court accepts the case, it could mandate a return to earlier review standards that prioritized patent challenge eligibility over the duration a patent has been in force.
Timeline
February 2026: The U.S. Court of Appeals for the Federal Circuit denied Kahoot AS! a writ of mandamus.
July 2026: Kahoot AS! filed a petition for a writ of certiorari with the U.S. Supreme Court.
July and August 2026: The PTAB instituted 42 patent petitions and denied 36.
September 16, 2026: The PTAB Bar Association filed an amicus brief supporting the review.
Market Landscape
This case represents a major legal challenge to the USPTO's administrative discretion under the America Invents Act. It follows a recent trend where the agency has attempted to formalize internal standards like the settled expectations doctrine to curb repetitive or late-stage patent challenges.
Business owners relying on patent portfolios should monitor the Supreme Court's decision on whether to hear this case, as a ruling could alter the predictability of patent validity challenges. Compliance teams should review existing licensing agreements and intellectual property disputes that may be impacted by a shift in PTAB institution rates.
The takeaway
The attempt to limit patent reviews through the settled expectations doctrine is currently under intense legal scrutiny from industry groups and IP scholars. Operators should track the Supreme Court docket for a potential grant of certiorari, which would signify a major shift in how the USPTO evaluates patent challenges.
Further reading
For broader context on how regulatory shifts impact digital business operations, visit the Remote Work section.
Live Poll
Should patent regulators have broad discretion to reject legal challenges to older patents?
