New PTAB discretionary denial policy may reshape patent challenges by overseas companies
By Hengyi Jiang
Published on April 6, 2026.
The US Patent and Trademark Office (USPTO) has introduced a new discretionary denial policy regarding patent challenges by overseas companies. The Director's memorandum identified three additional factors that may be considered when deciding whether to institute review, including the products accused of infringement in a parallel proceeding are manufactured in the United States or related to investments in American manufacturing operations. These factors expand the traditional discretionary-denial framework, which previously focused on procedural and merit issues such as efficiency of parallel district court litigation, the settlement expectations of the parties regarding the asserted patents, and the merits of the invalidity challenges. The new policy suggests that PTAB panels may also consider broader economic policy interests when evaluating whether to review. This could lead to increased scrutiny of real-party-in-interest disclosures in cases involving foreign companies.
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