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This week on IPWatchdog Unleashed we discuss whether patent owners are better off facing post-grant challenges at the  Patent Trial and Appeal Board (PTAB) or the Central Reexamination Unit (CRU) at the United States Patent and Trademark Office (USPTO). PTAB practitioners Matt Phillips and Kevin Greenleaf join host Gene Quinn for an examination of how patent owners and challengers should be strategically thinking about the shifting post-grant environment at the USPTO. The conversation highlights the growing reality that post-grant practice is no longer defined solely by inter partes review (IPR), but that ex parte reexamination has seen a resurgence in popularity, which requires careful evaluating timing, procedural dynamics, cost, and institutional realities. 

While IPR proceedings offer structured timelines, litigation-style advocacy, and strict scrutiny of petitions as drafted, reexamination provides prosecution-style flexibility, examiner interviews, and opportunities to refine claims through amendment. The trio emphasized that the low threshold for ordering reexamination makes institution statistics less meaningful than what happens in the first Office action. At the same time, PTAB proceedings can end quickly if institution is denied, offering efficiency advantages that reexamination cannot always match. These tradeoffs mean that neither forum is universally superior; each presents strategic advantages depending on the strength of the prior art, litigation posture, and business objectives. 

Ultimately, the discussion underscored that administrative patent review remains in a period of policy uncertainty. Changes in PTAB discretionary-denial practice, operational shifts within the CRU, and the absence of stable rulemaking create ongoing unpredictability for both patent owners and challengers. As post-grant challenges increasingly shift between forums, practitioners must focus on rigorous diligence, careful drafting, and adaptable strategy. The conclusion is that in today’s environment, success in post-grant proceedings depends less on forum preference and more on preparation, technical strength, and the ability to navigate a system still searching for long-term equilibrium.

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