Overview
On March 11, 2026, USPTO Director Squires issued a Memorandum (available here) that added additional factors that the Director will consider when determining whether to institute an inter partes review (IPR) or a post-grant review (PGR). These factors place new emphasis on the U.S. patent economy and domestic manufacturing. Specifically, the Director will weigh (1) the extent to which accused products are made in the United States, (2) whether the patent owner’s competing products are domestically manufactured, and (3) whether the petitioner is a small business sued for infringement. U.S. manufacturing presence will be evaluated broadly, including not only final assembly but also U.S. component production and partial processing. These changes are intended to ensure that the institution decision process better reflects statutory obligations to protect the economy and the integrity of the patent system (see 35 U.S.C. §§ 316(b), 326(b)), with a particular focus on supporting domestic manufacturing, incentivizing U.S. innovation, and understanding the impact of the IPR and PGR processes on small businesses versus companies that do not invest in U.S. manufacturing.
Justifying these new factors, the Director noted that despite the availability of IPR and PGR for fifteen years, the United States has continued to experience significant offshoring of manufacturing leading to economic and national‑security concerns. Additionally, the Director stated that many frequent IPR petitioners are large companies without substantial U.S. manufacturing operations. Accordingly, by implementing these factors, the Director hopes to reassess whether the current framework properly supports the interests of entities that invest in domestic production. The Memorandum applies to all future IPRs and PGRs where the due date for the Patent Owner’s discretionary brief has not yet elapsed.
