“To IPR or Not to IPR?” — Director Squires Offers Clarity, With Data and History

For 15 years, the question “Should we file an IPR?” was easy. The answer — almost invariably — was “yes.” High institution rates, a famously skeptical U.S. Patent Trial and Appeal Board (PTAB), and minimal downside made inter partes review (IPR) a nearly reflexive tool in the litigator’s arsenal. U.S. Patent and Trademark Office (USPTO) Director Squires’ precedential decision issued May 14, 2026, in Magnolia Medical Technologies, Inc. v. Kurin, Inc. (IPR2026-00097) provides clarity to that calculus.

The opinion is part case decision, part white paper. Drawing on congressional intent, precedent from the U.S. Court of Appeals for the Federal Circuit, and 15 years of empirical data, Director Squires articulates a multifactor, public-interest framework for institution. The central premise: Congress created IPR as a “quick and cost-effective alternative to district court patent litigation” — not a parallel litigation amplifier nor a harassment tool. Fifteen years of data, however, show that a handful of market-dominant companies have filed most America Invents Act (AIA) petitions — the top 10 petitioners filed roughly 1,900 petitions, while the next 70 combined filed about the same number. The USPTO noticed.

For Petitioners and their counsel: Think before you file — and think harder before you file again.

• • • Prior litigation overlap: Using an IPR to relitigate validity questions already decided — or strategically fumbled — in district court is precisely what this opinion denies. A lost trial is not an invitation to a second bite at the apple.
    • Multiple petitions: Stacking serial challenges to the same patent is now a red flag, not a strategy.
    • Inconsistent positions: If your district court claim construction and your PTAB construction are in tension without a clear explanation, expect pointed scrutiny.
    • Foreign sovereign nexus: If any real party in interest is a foreign sovereign, institution may be barred outright — full stop.

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For patent owners and their counsel: Your discretionary brief just became your most important filing.

• • • Domestic manufacturing: Document it. Invoke it early in discretionary briefing.
    • Small business status: Identify it per the March 2026 U.S. Manufacturing Memorandum — the Director is actively collecting this data as a discretionary factor.
    • Settled expectations: A patent that has been commercialized, licensed, or embedded in a technology space is now more defensible at the institution stage.
    • Examiner error: Conversely, a substantial showing of apparent examiner error can still overcome discretionary denial — this framework cuts both ways.
      
      

In this particular opinion, Director Squires denied institution on the grounds that the petitioner was seeking a second bite at the apple to relitigate the same invalidity grounds it had advanced in the preceding district court litigation, grounds that were precluded at trial due to the petitioner’s own actions. Squires noted that the parties had already expended substantial resources on this issue and concluded that permitting such a repeat challenge “would fly in the face of Congress's stated goals for the AIA to be used as a litigation alternative.” 

The Bottom Line

Director statutory discretion over institution is, per the Federal Circuit and the United States Supreme Court, unreviewable: “No law compels institution.” Whether one views Director Squires’s framework as long-overdue course correction or an unwelcome pendulum swing toward patent owners, it is now precedential — and backed by data. IPR remains available; it is simply no longer automatic. Petitioners and patent owners alike should audit their current dockets and adjust strategy now, before the next filing deadline makes the decision for them.