Reexam Grant Rates Have Been at 84% for Two Quarters

When we wrote about the spring collapse in reexam grant rates in July, the caveat was that three months is not a trend. The rate could have snapped back to the mid-90s where it had sat since 2012.

It did not. Here are the quarters.

Two quarters within half a point of each other is not a spike. For the fourteen years from 2012 through 2025 the annual grant rate never fell below 93.0% or rose above 97.6%. The office has now entered 85 denials in 2026, against 21 in all of 2025, and the previous annual record was 23 in 2013. Either of the last two quarters on its own nearly doubles the worst full year ever recorded.

Three things say this is real. The denials came from 37 different reexam examiners, 21 of them in the third quarter alone, so it is not one examiner running strict. They spread across every technology area we classify. And they reached experienced filers: among the requesters named in the papers on third-quarter denials are Cisco, Unified Patents, Fortinet, NXP, Snap, Samsung Electronics America and Heartflow. Unified Patents is as practiced a reexam filer as exists in the country, and it was turned away three times in one quarter.

One caution on monthly figures. Denials load into the record over the following weeks, so a month in progress reads high and settles lower. August was running above 90% mid-month and closed at 78.9%. Use the quarters.

The guidance in circulation has not caught up

Most of the 2026 writing about reexamination still describes the old regime, and it is being read by people deciding what to file this quarter.

Crowell & Moring, in March, told readers that "the USPTO institutes over 90% of ex parte reexamination requests upon a showing of a substantial new question of patentability." Womble Bond Dickinson, in late April, wrote that "the decision to grant reexamination is largely insulated from the discretionary overlays that now characterize PTAB practice."

Both sentences were defensible when written. Neither describes what happened next. The insulation ended on May 22, 2026, when the office denied a request under 35 U.S.C. 325(d) because it recycled the art and arguments from an IPR petition that had been discretionarily denied on settled expectations, without the merits ever being reached. And the rate is no longer over 90%. It has been about 84% for two quarters.

The gap is not the fault of the firms writing. Filing volume is the only reexamination number anyone publishes. Unified Patents reported 336 requests in the second quarter, an all-time high, and 594 in the first half, three quarters of all post-grant filings. Neither that report nor any other tracks the rate at which requests are ordered.

Why it fell

Two changes landed almost together.

The first is the pre-order procedure, effective for requests filed on or after April 5, 2026. A patent owner can now file up to 30 pages arguing that a request raises no substantial new question, before the office decides whether to order reexamination, and the requester generally has no reply as of right. Morgan Lewis named the three attacks those papers would make: that the cited teachings "are cumulative, are being characterized too aggressively, or depend on an overextended reading of the prosecution history." Uptake was immediate. Of the 234 requests filed between April 6 and June 11, Unified Patents counted pre-order papers in 97, about 42%.

The second is 325(d) reaching reexamination at all. Miller Johnson put the consequence plainly: ex parte reexamination "may no longer provide the second bite at the apple that many litigants have come to expect." BakerHostetler's read was that reexamination "should not be viewed as a clean second opportunity after a discretionary IPR denial."

What it means for a request filed today

Reexamination is still the most available post-grant route by a wide margin. IPR petitions fell to 57 in the second quarter, an all-time low. An 84% order rate is still a far better prospect than an IPR institution decision. The change is that it is no longer automatic, and a 16% failure rate is large enough to plan around.

Write the request against the pre-order paper, not the examiner alone. The patent owner gets the first word now and you will probably not get to answer it. Cooley's advice follows: "it is more important than ever that the initial request be as comprehensive and well-supported as possible."

Treat reused IPR art as a liability. If your grounds overlap a petition denied on discretion, that denial travels with the art.

Check the examiner. The denials spread across 37 examiners but not evenly, and the office has more room for a threshold call than it had a year ago. How your assigned examiner has handled the substantial new question matters more when the base rate is moving than it did when the base rate never moved.

The fourteen-year assumption is spent. If you are advising a client on whether reexamination is the fallback when an IPR looks unlikely, the answer changed this year, and most of what is in print has not changed with it. We will update this series each quarter.