The Power of Policy: Fintiv Remains Intact at the PTAB

In Apple Inc. v. Squires, No. 24-1864 (Fed. Cir. Feb. 13, 2026), the Federal Circuit affirmed the Northern District of California’s ruling that the USPTO Director’s NHK-Fintiv framework for discretionary denial of inter partes review petitions is a “general statement of policy” exempt from the Administrative Procedure Act’s (“APA”) notice-and-comment requirements.

Apple and others challenged the Director’s instructions to the PTAB governing discretionary denial of institution decisions, arguing that the instructions constituted binding legislative rules and were issued without the notice-and-comment procedures required by § 553 of the APA. The district court rejected Apple’s argument. Apple appealed.

On appeal, the Federal Circuit affirmed. The Court emphasized that Congress created no statutory entitlement to the institution of IPRs and that the Director retains ultimate, unreviewable authority to institute or deny review—regardless of any initial decision by the PTAB acting as the Director’s delegate. Because the challenged instructions neither constrain nor alter the Director’s unreviewable non-institution authority, the Court held that the instructions constitute general statements of policy and therefore do not require notice-and-comment rulemaking under § 553.