Google's Application Rejected: The U.S. Patent War Is Recalculating the Costs of Offense and Defense

October 19, 2026, the U.S. Supreme Court denied Google's petition for a writ of certiorari in the case of Google v. VirtaMove (No. 25-1230). As is customary, the Supreme Court provided no explanation for its denial of review, but the path that led to this outcome is clearly documented in the case file, with two distinct reasons behind the rejection.

The first reason lies with the USPTO.

In July 2025, Google filed four Inter Partes Review (IPR) petitions against two patents held by VirtaMove, but the United States Patent and Trademark Office (USPTO) exercised its discretion and declined to institute the proceedings. The USPTO ruled that the two patents in question had been in force for more than 14 years, and the patent holder had formed strong "settled expectations", while Google failed to justify why resources from the Patent Trial and Appeal Board (PTAB) should be allocated to re-examine these patents.

The second reason lies with the courts.

Section 314(d) of the U.S. Patent Act restricts judicial review of institution decisions. Google argued that the USPTO had effectively set an additional time threshold based on patent age that was not stipulated by Congress, and petitioned the U.S. Court of Appeals for the Federal Circuit to issue a mandamus to correct the decision, which was not granted. The Supreme Court's denial of review this time means that the Federal Circuit's ruling remains in place.

Therefore, the rejection of Google's petition does not prove that its prior art evidence is untenable; the problem is that it failed to obtain the opportunity to initiate the review. This is exactly what makes this denial of review noteworthy: not a single word of the patent claims has been modified, yet the difficulty of challenging them has increased.

01 "Settled Expectations" and the "Six-Year" Threshold

This discretionary policy originates from the memorandum issued by then-Acting Director Coke Morgan Stewart on March 26, 2025. The memorandum separates discretionary considerations from substantive examination, and explicitly includes "the settled expectations of the parties, such as the length of time the claims have been in effect" as a consideration factor.

There is no provision in the memorandum that "institution will be denied once six years have passed". The "six-year" standard is a summary of subsequent practice put forward by Google in its petition; the U.S. government emphasizes that there is no uniform age cutoff line.

Therefore, this denial of review cannot be interpreted as "the Supreme Court affirming the six-year rule", let alone "old patents can no longer be invalidated". The Supreme Court did not rule on the legality of this policy, nor did it judge whether the patents in question are valid or whether Google has committed infringement.

02 Shrinking Access to Review Proceedings

This denial of review is not an isolated event. Starting from October 20, 2025, the decision on whether to institute IPR and Post-Grant Review (PGR) proceedings is made by Director John Squires after consulting with at least three PTAB judges. According to statistics released by the USPTO, the overall institution rate of AIA trial proceedings calculated by petition was 68% in FY2024, 50% in FY2025, and 37% in FY2026 as of the end of February (covering IPR and PGR, the last figure is partial phase data).

The decline in the institution rate cannot be entirely attributed to "settled expectations"; factors such as case composition and parallel proceedings also play a role. But the trend is clear: the administrative tool that defendants most commonly used to respond to U.S. patent litigation in the past now requires prior assessment of whether it is accessible to the petitioner.

Institutional debates are far from over. Intel and Google have filed a separate petition (Intel v. Squires) regarding the NHK–Fintiv framework applied by the USPTO to decide institution decisions when parallel proceedings exist. As of the search on October 20, this petition is still pending before the Supreme Court. This is not the same petition as the VirtaMove case, and this denial of review does not foreshadow the outcome of the other case; enterprises should not include "waiting for the Supreme Court to overturn the policy" in their business plans.

03 How to Calculate the Related Costs

Once the procedural access changes, licensing offers will also shift accordingly. If a defendant can file a strong IPR in a timely manner, the patent holder will have to weigh the risk of the patent being revoked; after the certainty of institution declines, defendants can only continue to bear the defense costs in district courts, and the timing of settlement and licensing terms also need to be re-evaluated. Even if the technical content and protection scope of a patent remain completely unchanged, its negotiation value may change as a result.

For Non-Practicing Entities (NPEs), this means that defendants have lost one administrative challenge path. But the outcome of a dispute ultimately still depends on the claim scope, validity, infringement comparison and basis for damages. Discretionary denial of institution only affects which procedural path to take, and cannot replace substantive proof.

For Chinese enterprises, there are two layers of implications.

As defendants, patent risk analysis should not stop at the step of "whether the opposing patent has room for invalidation". It is also necessary to answer questions such as in which proceeding the challenge should be filed, whether the proceeding can be instituted, how long it will take to get a result, and when the proceeding cannot be initiated, how the evidence can still be used, and how to adjust the budget and negotiation plan. The grant date, changes in claims, previous challenges, licensing and litigation history should all be reviewed together with the patent text.

As holders of U.S. patents, records of long-term R&D, implementation and licensing are also worth preserving. They can be part of the argument for "settled expectations", but cannot replace clear claim boundaries and solid infringement evidence.

The denial of review on October 19 did not put a stamp of legitimacy on the "settled expectations" policy, but enterprises already need to arrange their offensive and defensive strategies under this set of rules. When evaluating a patent, in addition to assessing how strong it is, it is also necessary to consider how much cost the opposing party needs to pay to challenge it, and how many resources the enterprise itself has to fully enforce its rights.

Key Sources

[1] U.S. Supreme Court Docket No. 25-1230 https://www.supremecourt.gov/docket/docketfiles/html/public/25-1230.html

[2] Google's Petition for a Writ of Certiorari https://www.supremecourt.gov/DocketPDF/25/25-1230/405355/20260427110315509_Google%20v.%20Virtamove%20Cert%20Petition.pdf

[3] Appendix to the Petition (including the July 2025 Denial of Institution Decision) https://www.supremecourt.gov/DocketPDF/25/25-1230/405355/20260427110343350_Google%20v.%20Virtamove%20Pet.%20Appendix.pdf

[4] USPTO March 26, 2025 Memorandum https://www.uspto.gov/sites/default/files/documents/InterimProcesses-PTABWorkloadMgmt-20250326.pdf

[5] USPTO Director's Memorandum on Institution of Proceedings https://www.uspto.gov/sites/default/files/documents/Director_Institution_of_AIA_Trial_Proceedings.pdf

[6] USPTO PTAB Statistics for February 2026 https://www.uspto.gov/sites/default/files/documents/Trial_Stats_February_2026.pdf

[7] U.S. Court of Appeals for the Federal Circuit Opinion No. 24-1864 https://www.cafc.uscourts.gov/opinions-orders/24-1864.OPINION.2-13-2026_2647764.pdf

This article is from the WeChat Official Account "Zhichanli" (ID: zhichanli), authored by Shawn/MCP, and authorized for release by 36Kr.