Is Ex Parte Reexam Still Worth Filing After a Discretionary IPR Denial?
Firms have warned that a discretionary IPR denial may close the door to reexam. In 2026, three in four reexam requests filed after one were still granted.
When the USPTO denies an IPR on discretion, the obvious next move is ex parte reexamination. This year the USPTO made that move look a lot riskier.
In May it denied a reexam request from Geotab under 35 U.S.C. 325(d), because the request relied on the same art Geotab had used in its own IPR, which the Office had denied on discretion without reaching the merits. Miller Johnson read it as a warning to requesters reusing earlier PTAB arguments, and BakerHostetler asked whether a discretionary denial now shuts the door on reexam altogether. Mintz put it plainly: after an unsuccessful IPR, reexam "should not be treated as an automatic backup plan."
That's sound caution. But the decisions themselves tell a less alarming story.
Three in four still get through
Of the reexam requests filed in 2026 after a discretionary IPR or PGR denial on the same patent, and decided so far, three in four were granted.
The door isn't closed. It is narrower than it was. A request filed after a discretionary denial is more likely to be turned away than one against a patent with no earlier IPR or PGR, and what you file, and how it compares with what the Office has already seen, matters more than it used to.
Before you file
If your client's IPR was denied on discretion, the useful questions are how often requests like yours are denied, on what grounds, and how that changes with the kind of denial and the time since it. ExamPat tracks every reexam request against the IPR and PGR history of its patent, including every decision that turns on 325(d).