L'Office, C'est Moi: Director Squires and the Parchment Barriers of PTAB Institution Precedent

"In PacifiCorp v. Birchtech Corp., IPR2025-00687, Paper 40 (P.T.A.B. Jan. 12, 2026), the Director vacated institution decisions in four inter partes review proceedings where petitioners had filed two petitions against each of two patents. The petitions divided their invalidity arguments according to two separate invalidity theories: (a) pre-priority-date prior art and (b) intervening art that required challenging the patent's priority claim. Director Squires held that this parallel-petition strategy was not justified because petitioners had ample room in each petition to present alternative arguments."

"the precedential status of this decision does not actually constrain USPTO institution practice since institution decisions are no longer decided by the Board but rather by Dir. Squires himself. To borrow from James Madison in Federalist No. 48, this designation is a mere 'parchment barrier.' It provides the appearance of structural constraint, but the Director holds the power to both legislate the rules and decide the cases. And, as the government recently argued before the Federal Circuit, the Director is not bound by PTAB precedent."

Director Squires designated PacifiCorp v. Birchtech precedential and vacated institution decisions in four inter partes review proceedings where petitioners filed parallel petitions that split invalidity theories between pre‑priority‑date prior art and intervening art requiring priority challenges. Squires found the parallel‑petition strategy unjustified because petitioners had sufficient room in each petition to present alternative arguments. The decision follows and cites Acting Director Stewart's CrowdStrike decision and nominally converts that guidance into binding Board practice. The precedential designation, however, does not constrain USPTO institution practice because institution decisions are decided by the Director, who is not bound by PTAB precedent.

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