The U.S. Patent and Trademark Office (USPTO) has recently defended its “settled expectations” policy before the Federal Circuit, urging the court to reject Google’s constitutional challenge to this approach. The policy allows the USPTO to consider the age of a patent when deciding whether to institute inter partes review (IPR) proceedings, with the agency asserting that this practice is “eminently rational.”
Under the “settled expectations” doctrine, the USPTO may discretionarily deny IPR petitions for patents that have been in force for a significant period, typically six years or more. The rationale is that over time, patent owners develop a reasonable reliance on the validity of their patents, and challenging such long-standing patents could disrupt these established expectations. This policy was formalized in March 2025 and has since been applied in several cases, leading to a notable increase in discretionary denials of IPR petitions.
Google’s challenge centers on the argument that the USPTO’s policy effectively creates an unauthorized statute of limitations for IPR proceedings, shielding potentially invalid patents from review based solely on their age. The company contends that this practice exceeds the agency’s statutory authority and undermines the purpose of the IPR system, which is to provide a mechanism for challenging the validity of patents post-grant. In April 2026, Google filed a petition for certiorari with the U.S. Supreme Court, seeking to invalidate the “settled expectations” doctrine.
The Federal Circuit has previously addressed challenges to this policy. In January 2026, the court denied a petition for writ of mandamus from Google, which sought to overturn the USPTO’s discretionary denial of IPR institution based on the “settled expectations” doctrine. The court found that Google had not demonstrated a clear and indisputable right to relief, emphasizing the broad discretion granted to the USPTO Director in deciding whether to institute IPR proceedings.
Industry stakeholders have expressed concern over the implications of the “settled expectations” policy. In June 2026, a coalition of computer and automotive industry trade organizations filed an amicus brief with the Supreme Court, urging the Court to grant Google’s petition and eliminate the doctrine. The amici argue that the policy lacks a statutory basis and effectively creates a two-tier patent system, where older patents are insulated from IPR challenges, potentially allowing invalid patents to remain in force.
As the Federal Circuit considers the USPTO’s defense of its policy, the outcome of this case could have significant ramifications for the patent system, particularly regarding the balance between protecting patent owners’ reliance interests and ensuring the availability of mechanisms to challenge potentially invalid patents. Legal professionals and industry participants are closely monitoring developments, recognizing the potential impact on patent litigation strategies and the broader innovation landscape.