Google Petitions Supreme Court to Resolve Whether PTAB Can Block IPR Based on Patent Owner’s “Settled Expectations”

Google LLC filed a petition for a writ of certiorari with the U.S. Supreme Court on April 27, 2026, asking the court to resolve whether the Patent Trial and Appeal Board (PTAB) possesses statutory authority to deny inter partes review (IPR) petitions on the grounds that an issued patent has generated a patentee’s “settled expectations” over time. The petition targets the Federal Circuit’s January 27, 2026 denial of mandamus in In re Google LLC, No. 2026-111, which left in place PTAB’s refusal to institute IPR proceedings against a patent asserted by VirtaMove, Corp.

The “Settled Expectations” Doctrine

The “settled expectations” doctrine emerged in 2025 through a series of institution decisions issued directly by the USPTO Director. Under the doctrine, a patent that has been in force for six or more years is presumed to have generated reliance interests for the patent owner, and those reliance interests can justify a discretionary denial of IPR institution. The doctrine is not grounded in any provision of the America Invents Act (AIA) or any other statute.

In this case, Google filed IPR petitions in January 2025 challenging a VirtaMove patent that had issued in 2010. PTAB denied institution on a single rationale: the patent had “been in force for more than 14 years, creating strong settled expectations.” VirtaMove is a software company developing application migration technology and has actively litigated its patents against major technology companies including Google.

Questions Presented

Google’s petition presents two interrelated legal questions.

The first question is whether the USPTO has statutory authority under the AIA to deny IPR based on a patent owner’s settled expectations once a patent has been in force for six years. The AIA expressly permits IPR petitions throughout the life of a patent, subject to explicit statutory bars such as the one-year time limit for petitioners who have been served with a complaint. Google argues that by creating a six-year presumption against institution, the Director has invented a non-statutory limitations period that supplements rather than enforces the statute Congress wrote.

The second question asks whether Article III courts retain the power to review such denials when the petitioner claims they exceed the agency’s statutory authority. In light of the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which abandoned Chevron deference, Google contends that courts should not defer to the agency’s interpretation when it effectively creates new law beyond the statute’s text.

Dramatic Decline in IPR Filings

The practical impact of the settled expectations doctrine is already visible in filing statistics. As of May 2, 2026, only eleven IPR petitions had been filed over the preceding four weeks, the lowest four-week total since the IPR system was established in September 2012. The doctrine has had a measurable chilling effect on petitioners’ willingness to challenge patents that have been in force for more than six years.

IPR has served as the dominant mechanism for challenging issued patent claims since its introduction under the AIA. For technology companies facing patent assertions, IPR proceedings have been a cost-effective tool to contest patent validity before an administrative tribunal. The settled expectations doctrine materially restricts access to that mechanism for a large share of issued patents currently being enforced in litigation.

Implications for Patent Practice

If the Supreme Court grants certiorari, a ruling on the statutory limits of PTAB’s discretionary denial authority could reshape IPR practice across the board. A decision favorable to Google would likely revive IPR petition volumes and constrain the Director’s ability to create non-statutory barriers to review. A ruling against Google would entrench the settled expectations doctrine and force practitioners to treat post-six-year patents as substantially harder to challenge through IPR.

Even if certiorari is denied, practitioners representing companies facing patent assertions should factor the age of the asserted patent into their early case assessment. Petitions targeting patents issued within the past six years face fewer discretionary hurdles, making the timing of IPR filing relative to patent issuance an increasingly important strategic variable.