PTAB Update | April 2026

Why It Matters

The pre‑order filing gives patent owners a proactive tool to influence USPTO decisions, potentially reducing litigation costs, while the clarified standing standard tightens the threshold for challengers, affecting how infringement suits are framed.

Key Takeaways

• USPTO now permits “pre‑order” papers before institution decision in EPR
• Pre‑order allows owners to argue against institution, potentially averting trial
• Ex‑parte reexamination filings have risen as IPR usage falls
• Standing requires plaintiff’s product to fall within challenged claims

Pulse Analysis

The United States Patent and Trademark Office is adapting to a shifting landscape in post‑grant review. Inter‑partes review, once the go‑to mechanism for challenging patents, has waned as defendants favor ex‑parte reexamination, which is less costly and does not require an adversarial party. To address the growing docket and give patentees a voice early in the process, the USPTO introduced a “pre‑order” paper that can be submitted before the agency decides to institute an EPR. This procedural tweak mirrors the agency’s broader effort to streamline case management while preserving due process for patent owners.

For patent owners, the pre‑order filing is more than a formality; it creates a strategic window to present prior art, argue claim construction, or propose claim amendments before a full trial commences. By influencing the institution decision, owners can potentially halt a costly proceeding, preserve business continuity, and avoid the uncertainty of a trial outcome. Practitioners are already recalibrating their litigation playbooks, weighing the timing of pre‑order submissions against the risk of a delayed institution that could later limit defensive options.

The update on standing underscores a parallel trend in patent litigation: courts are tightening the injury‑in‑fact requirement, insisting that a challenger’s product must directly implicate the contested claims. This heightened scrutiny discourages peripheral challenges and forces litigants to focus on concrete, claim‑specific harms. Together, the USPTO’s procedural innovation and the refined standing doctrine signal a more disciplined, efficiency‑driven patent ecosystem, where early engagement and precise claim mapping become critical to success.