Federal Circuit: PTO Director Guidance on Discretionary Denials is Exempt from Notice-and-Comment Rulemaking

February 20, 2026 Federal Circuit, IPRs, Inter Partes Review

The Federal Circuit recently addressed whether the PTO must conduct notice‑and‑comment rulemaking before issuing instructions that guide how the Board should exercise discretion at the institution stage of IPRs. The court held that no such rulemaking is required. Instructions to the Board regarding its use of the Director’s delegated discretionary authority not to institute review are merely general statements of policy exempt from notice-and-comment rulemaking.  

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