The Architecture of Finality

This post continues the inquiry we began in our October 21, 2025 post, “One Forum. One Fight. One Shot.” There, we described a patent system evolving toward singularity—a world of limited venues, compressed timelines, and decisive outcomes. Here, we examine what happens when that
evolution becomes design: when the United States Patent and Trademark Office (USPTO) turns procedural discretion into institutional architecture.

October 30, 2025

The United States Patent and Trademark Office’s (USPTO) Revision to Rules of Practice Before the Patent Trial and Appeal Board, 90 Fed. Reg. 48335 (Oct. 17, 2025), is more than a procedural update. It is an act of institutional architecture. Beneath its language of “efficiency” and “predictability,” the rule reimagines the balance between discretion and design, signaling the USPTO’s intent to engineer finality into the very structure of post-grant review.

Since the America Invents Act (“AIA”), Pub. L. No. 112-29, 125 Stat. 284 (2011), established the Patent Trial and Appeal Board (“PTAB”) under 35 U.S.C. §§ 6 and 316, the Board has embodied a tension between flexibility and closure. Its inter partes review (“IPR”) and post-grant review (“PGR”) proceedings were meant to streamline validity challenges, not duplicate them. Yet over the past decade, those mechanisms evolved into overlapping forums, spawning procedural redundancy, inconsistent outcomes, and a legitimacy crisis.

The 2025 rule is the agency’s response—not a retreat from power, but a redesign of it. Following Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024) (overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984)), the USPTO can no longer rely on judicial deference to interpretive discretion. It must instead justify its authority through architecture: by embedding coherence, hierarchy, and finality into its rules.

In that sense, the 2025 proposal is both procedural and constitutional. It recasts the PTAB not as a fluid tribunal of expert judgment, but as an engineered mechanism of administrative closure—a model for a post-Chevron era in which legitimacy is not presumed by deference, but constructed by design.

The Director's Republic: Centralization and Hierarchy

The AIA envisioned the PTAB as a technocratic experiment—an expert forum where patent validity could be tested quickly and efficiently. Congress empowered the Director to “prescribe regulations... establishing and governing inter partes review” (35 U.S.C. § 316(a)). That delegation has since become the foundation of the Board’s evolving architecture.

The Supreme Court first acknowledged the breadth of that authority in Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. 261 (2016), upholding the Director’s discretion to institute review under § 314(d) and holding that such decisions were “final and nonappealable.” Two years later, SAS Institute, Inc. v. Iancu, 584 U.S. 381 (2018), added a counterweight, requiring that once an IPR is instituted, all challenged claims must be adjudicated to final written decision. This created a dual mandate: discretion at the threshold, completeness at the conclusion.

Then came Thryv, Inc. v. Click-to-Call Technologies, LP, 140 S. Ct. 1367 (2020), which reaffirmed that institution decisions remain beyond judicial review, cementing the Director’s position as gatekeeper. Combined, these cases constitutionalized what had been a matter of administrative convenience: the power to decide not only how an IPR proceeds, but whether it proceeds at all.

The 2025 rule completes this jurisprudential arc. Where Cuozzo and Thryv confirmed discretion, the USPTO now codifies it. Where SAS mandated total adjudication once instituted, the new regime narrows the universe of cases that ever reach that stage. The PTAB’s experimental phase is over. It has entered its architectural era.

The Mechanics of Engineered Finality

Under the revised framework, the Director will personally determine whether to institute IPRs and PGRs on the merits. PTAB panels will no longer issue institution decisions, though they will still conduct trials and render final written determinations.

This move consolidates institutional authority in the office of a single executive—a response both to constitutional pressure and managerial logic. Following United States v. Arthrex, Inc., 520 U.S. 651, 141 S. Ct. 1970 (2021), which held that administrative patent judges were principal officers whose unreviewable decisions violated the Appointments Clause, the Director’s ability to review PTAB outcomes became the constitutional fix. The 2025 rule extends that remedy upstream. If the Director is ultimately accountable for outcomes, she will also control the inputs.

This centralization brings coherence but at a cost. It transforms the PTAB from a quasi-judicial body into a vertically integrated hierarchy. Adjudication and policy now converge in one office. While this alignment may enhance consistency, it also blurs the boundary between neutral adjudication and executive policy implementation—an enduring tension in administrative law (see 5 U.S.C. § 554(d) (separation of adjudicative and investigative functions)).

In effect, the Director’s discretion has evolved into a form of institutional sovereignty—a “Director’s Republic” within the administrative state.

The rule’s operative mechanisms are threefold.

First, the USPTO proposes a mandatory stipulation: petitioners must agree not to assert the same §§ 102 or 103 invalidity grounds in any other proceeding once an IPR or PGR is instituted. This provision functions as a self-executing estoppel, foreclosing duplicative litigation and forcing petitioners to choose their forum with finality.

Second, the rule bars institution where a challenged claim—or its parent independent claim—has already been adjudged valid in any forum, including prior PTAB decisions, district court judgments, International Trade Commission determinations, or ex parte reexaminations.

Third, the PTAB must deny institution if it is “more likely than not” that another tribunal will issue a validity decision first. This timing bar formalizes what Apple Inc. v. Fintiv, Inc., IPR2019-01239, Paper 11 (PTAB Mar. 20, 2020), once treated as a discretionary factor.

Collectively, these provisions transform prudential doctrines into jurisdictional rules. They redefine the PTAB not as a concurrent venue for validity review but as a complementary, temporally sequenced forum. The agency’s message is clear: the days of parallel or serial attacks are over.

Legitimacy and Its Discontents

No rule can be understood without the legitimacy debate that birthed it. Since their inception, IPR and PGR have occupied an uneasy place between public administration and private rights.

Opponents argue that administrative invalidation of issued patents violates Article III and the Seventh Amendment by extinguishing vested property rights without jury trial. See Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 137 S. Ct. 2239 (2017). To them, the PTAB represents executive encroachment on judicial prerogative—a bureaucratic substitute for the rule of law.

Supporters counter that patents are public franchises—conditional privileges granted by the sovereign. Under this view, the government may correct its own errors through administrative process without offending separation of powers. Oil States endorsed that rationale, framing IPR as “a second look at an earlier administrative grant.”

Beyond constitutional theory lies practical grievance. Petitioners have weaponized IPRs to extract settlements, filing serial challenges or coordinating attacks among proxies. Patent owners decry the “death-squad” dynamic; petitioners insist the system remains too lenient. Both narratives oversimplify but reveal a shared anxiety: unpredictability.

Despite its reputation, the PTAB’s grant-to-uphold ratio has stabilized. Institution rates hover near 55%, and the majority of patents emerge with at least one claim intact. The problem, then, is less statistical than psychological. The specter of uncertainty—of never-ending review—has eroded confidence in the system’s finality.

The 2025 rule attempts to domesticate that anxiety. By restricting when and how the PTAB may act, the USPTO seeks to demonstrate procedural restraint as a form of legitimacy. It transforms administrative self-doubt into structured self-control—a regulated conscience within the state.

Yet legitimacy gained through restraint may prove brittle. A system that limits its own corrective function risks ossifying the very errors it was designed to fix. Engineered finality may cure instability but at the price of adaptability.

Efficiency, Equity, and the Myth of Neutrality

Administrative law has long balanced systemic efficiency against individual fairness. The Mathews v. Eldridge, 424 U.S. 319 (1976), framework instructs courts to weigh the private interest affected, the risk of erroneous deprivation, and the government’s interest in efficiency. Applied here, the calculus reveals asymmetry.

The private interest—retention or invalidation of a patent—is substantial; the risk of erroneous deprivation, nontrivial. Yet the government’s interest in conserving resources and reducing duplicative litigation now dominates the equation. The 2025 rule optimizes the system for order, not participation.

Neutrality in this context is aspirational. Every design embeds value judgments. By privileging finality over pluralism, the USPTO affirms a managerial vision of patent adjudication: one that equates legitimacy with closure. The rule’s genius—and its peril—is that it converts efficiency into virtue.

Comparative Perspective

Other jurisdictions illustrate the road not taken. The European Patent Convention (EPC) provides for opposition proceedings under Art. 99, which may coexist with national litigation. Japanese Patent Act Art. 123 permits invalidation trials in parallel with judicial review. Both systems tolerate concurrency, trusting institutional dialogue over hierarchical control.

The United States, by contrast, now formalizes hierarchy. The PTAB defers to the courts not through doctrine but through regulation. This structure ensures harmony but eliminates the creative tension that once allowed administrative and judicial fora to refine each other’s reasoning.

Whether that loss proves salutary or stifling will depend on whether the system values predictability more than dynamism.

The Future of the Administrative State

The USPTO’s 2025 rule foreshadows the shape of administrative governance in the post-Chevron era. Agencies deprived of interpretive deference are codifying discretion into procedural architecture. Formalism has become the new fortress of legitimacy.

Patent law often leads where others follow. Just as Cuozzo and Oil States anticipated later debates over agency adjudication, the PTAB’s redesign may preview transformations in fields from securities to environmental regulation. Where the twentieth century’s administrative state sought flexibility through delegation, the twenty-first seeks credibility through design.

This evolution does not signal expansion of power so much as its rationalization. The USPTO is not claiming new authority; it is scripting old authority to survive judicial skepticism. In doing so, it turns procedure itself into a constitutional argument.

The Architecture of Finality

The USPTO’s proposed rule is more than a managerial reform. It is the culmination of a decade-long migration from discretion to design—a deliberate act of constitutional engineering.

Doctrinally, it stabilizes the Director’s authority under Arthrex and § 316(a). Administratively, it answers charges of inconsistency through codified restraint. Systemically, it trades pluralism for predictability.

Whether this architecture endures will depend on how stakeholders experience it. If patent owners see engineered finality as fairness restored, the reform will be vindicated. If challengers view it as bureaucratic foreclosure, the legitimacy debate will merely change shape.

Either way, the PTAB has become the mirror through which the administrative state now examines itself. Its evolution from experimental tribunal to constitutional design project marks the end of one era and the quiet beginning of another—one where agencies maintain their authority not by pleading for deference, but by embedding legitimacy into the geometry of their own rules.