The Mythic Source of USPTO Institution Discretion?

"We have another mandamus petition at the Federal Circuit challenging the USPTO's IPR institution denials. In re Tesla, Inc., No. 26-116 (Fed. Cir. filed Dec. 2, 2025). The case involves patents asserted by Granite Vehicle Ventures LLC against Tesla's Self-Driving technology. But the petition's significance extends well beyond this particular dispute. Tesla advances a statutory interpretation argument that, if accepted, would fundamentally constrain the USPTO's claimed authority to deny IPR institution based on factors Congress never authorized."

"The core legal question is simple: Does 35 U.S.C. § 314(a) grant the Director unfettered discretion to invent new reasons to deny IPR institution? The USPTO has increasingly claimed discretionary power to justify denials based on a variety of novel explanations including "time-to-trial" concerns, "settled expectations," and other criteria that do not appear in AIA or its legislative history. In its petition, Tesla argues the USPTO's approach transforms a provision limiting the Director's authority into an unlimited grant of power to nullify IPR entirely."

In re Tesla, Inc., No. 26-116 challenges USPTO IPR institution denials arising from patents asserted by Granite Vehicle Ventures LLC against Tesla's self-driving technology. The petition contends that 35 U.S.C. §314(a) does not authorize the Director to create new, nonstatutory reasons to deny institution, such as "time-to-trial" concerns or "settled expectations." The petition argues that treating §314(a) as an open-ended grant would allow the agency to nullify the IPR process and exceed Congress's AIA framework. The outcome could constrain or curtail the USPTO's asserted discretionary grounds for refusing to institute IPRs across many future petitions.

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