The patent review system Congress built is on trial

The U.S. Supreme Court is taking an interest in Alphabet Inc.'s petition for certiorari challenging a U.S. Patent and Trademark Office policy that makes it virtually impossible for accused infringers to challenge patents more than six years old.

The court asked for a response from the government and from VirtaMove Corp., the company in the patent infringement battle with Google LLC, Alphabet's subsidiary.

Google's petition challenges a policy adopted by U.S. Patent and Trademark Office Director John A. Squires, who often denies institution of inter partes review of older patents in what had previously been a routine approval by judges on the Patent Trial and Appeal Board.

The underlying principle of the new rule is what Squires calls "settled expectations," the idea that patent owners should be able to rely on a patent's validity once six years have passed.

Several members of Congress from both parties told Squires that Congress deliberately omitted any time-based limitation on inter partes review during a House subcommittee hearing earlier this year that was cited in one of the amicus briefs.

"We designed [inter partes review] as a streamlined, expert-driven mechanism to catch the patents that should have never been granted to begin with," U.S. Rep. Zoe Lofgren, D-San Jose, said. "There are barriers being applied that Congress never authorized."

The gutting of IPR

The impact of the policy shift, initiated by then-Acting Director Coke Morgan Stewart in early 2025 and continued by Squires after his Senate confirmation last September, has been dramatic. The percentage of challenges instituted by the PTAB fell from roughly two-thirds between 2022 and 2024 to 35% through May of fiscal year 2026.

Patent lawyers have gotten the hint and are not even trying. The number of IPR petitions has fallen from a fairly steady 100 to 150 filings per month in 2024 and the first part of 2025 to a range of 15 to 46 this year.

The result is that a key provision of the America Invents Act of 2011, used with relish by defendants in patent infringement lawsuits to seek to knock out patents as invalid without expensive fights in district courts, has been a dead letter.

"It is no secret that the current PTO director has effectively killed the IPR process," said Mark A. Lemley, a Stanford Law School professor and partner with Lex Lumina PLLC.

Nathanael Andrews -- senior associate counsel with the Software and Information Industry Association, one of the amici -- said the patent office rule is already being felt by defendants.

"What we're hearing is there is a lot more pressure to settle weak cases," he said. "Companies have to be prepared to spend a lot more money to settle these cases that they would have been happy to defend."

The U.S. Court of Appeals for the Federal Circuit has denied several appeals of decisions not to institute inter partes review, prompting Google's petition for certiorari, filed by Ginger D. Anders, a partner with Munger, Tolles & Olson LLP. Google LLC v. VirtaMove Corp. et al., 25-1230 (S. Ct., filed April 27, 2026).

"That abdication of judicial review flies in the face of the bedrock Article III principle that it is the federal courts, not administrative agencies, that have the authority and duty to determine the bounds of agency discretion," she wrote, citing a 2024 Supreme Court decision. Loper Bright Enterprises v. Raimondo, 2024 DJDAR 5966 (S. Ct., filed Nov. 10, 2022).

The U.S. Department of Justice and solicitor general's office could not be reached for comment. The patent office declined to comment.

James A. Milkey, a Los Angeles partner with Russ August & Kabat who represents VirtaMove, could not be reached.

Hope for Google's petition?

Legal experts say they expect the government to respond even though the patent office, via Solicitor General D. John Sauer, waived its right to do so earlier.

Savvy court watchers have said the Supreme Court has called for responses in IP cases more frequently in recent years.

In amicus briefs filed last month, attorneys for trade associations representing businesses argue that the patent office's new policy effectively dismantles a system of patent review established by Congress.

"The USPTO makes a breathtaking claim of authority: that it can literally rewrite the terms of its enabling statute," wrote Joseph Matal, a former acting director of the patent office and principal at Clear IP LLC, which represents several trade associations.

Andrews said he is encouraged that the Supreme Court asked for responses.

"It seems like the sort of issue the justices would be interested in," he said.

Andrews said the point of inter partes review was to allow parties to challenge invalid patents before fighting it out in district court litigation.

"This system was designed to help clean that up and it's worked really well for more than a decade," he said. "It's now effectively off the table for all but a very small group of people."

A tough sell

Attorneys who oppose the patent office director's new rule are not getting their hopes too high, noting that it is rare for the Supreme Court to accept many cases for review. And because all patent appeals go to the Federal Circuit, there is no circuit split to cite.

Jonathan S. Masur, a professor at the University of Chicago Law School, praised the amicus briefs as well-written but said he doubts they will be enough to persuade the justices to take the case.

"The language of prior Supreme Court opinions -- not just Federal Circuit opinions -- granting the PTO director discretion as to which IPRs to institute is quite broad," he said. "And the amicus briefs do not identify any glaring legal error with those opinions."

Attorneys who have filed amicus briefs -- such as Brian Scarpelli of the Association for Competitive Technology, which represents small businesses - are cautious about the court's request for a response.

"It certainly doesn't guarantee the cert will be granted but it does indicate some interest," Scarpelli said.

It will be a few months before patent attorneys learn the court's answer. With responses due in July, justices will not consider Google's petition until this fall at the earliest.