Google petitions U.S. Supreme Court over Patent Trial & Appeal Board “settled expectations” denials

Context: Since early 2025, the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO) has taken a harsher line on petitions for inter partes reviews (IPRs) (June 27, 2025 ip fray article). In one such decision, former USPTO Acting Director (now Deputy Director) Coke Morgan Stewart denied Google’s petition for IPR targeting a patent asserted by VirtaMove. She did this on the basis that the patent had been in force for over 14 years prior to Google’s petition, “creating strong settled expectations” for VirtaMove on the presumed validity of its patent given no previous challenges. The United States Court of Appeals for the Federal Circuit denied Google’s petition for a writ of mandamus on the issue in January this year.

What’s new and direct impact: Google has now filed a petition for a writ of certiorari with the Supreme Court of the United States (SCOTUS), asking it to decide if the USPTO has statutory authority to deny validity challenges on a “settled expectations” basis.

Wider ramifications: At this stage it may seem that the chances of SCOTUS eventually taking on Google’s petition are small. Nevertheless, the impact of the USPTO’s evolving, stricter approach to IPR institutions in recent months is already being felt far and wide among the system’s heaviest users. As such, there’s a good chance we’ll see a number of amicus briefs filed in support of Google in the coming weeks. Parties seeking to file amicus briefs have a period of 30 days from the docketing of Google’s petition in which to do so.