Supreme Court Rejects Google’s Patent Review Appeal, Leaving ‘Settled Expectations’ Policy in Place

The U.S. Supreme Court has declined to review Google’s challenge to a federal patent-review policy that can make it harder for companies to contest the validity of older patents. The decision, issued on October 19, 2026, leaves an earlier ruling against Google in place and allows the U.S. Patent and Trademark Office (USPTO) to continue considering how long a patent has been in force when deciding whether to review it.

The dispute arose after software company VirtaMove accused Google of infringing a patent related to server technology. Google attempted to challenge the patent through the USPTO’s Patent Trial and Appeal Board (PTAB), but the agency declined to initiate the requested review in 2025.

Google argued that the patent office had exceeded its authority by using a “settled expectations” policy that gives weight to the age of a patent. The company maintained that Congress had not created a six-year deadline for challenging patent validity through administrative review.

The Supreme Court’s refusal to hear the case is a setback for Google and other businesses that rely on administrative proceedings to challenge patents. However, the Court did not issue a full ruling on whether the policy is legally valid. Instead, it declined to take up the appeal, leaving the lower court’s decision undisturbed.

What Is the ‘Settled Expectations’ Patent Policy?

The settled expectations policy allows the USPTO to consider whether a patent owner has developed legitimate expectations that an issued patent will remain in force when deciding whether to begin an administrative review.

Under the policy introduced in 2025, the age of a patent is one factor the agency may consider. Patents that have been in force for more than six years may receive greater protection from discretionary review, although the six-year mark is not an automatic statutory deadline or an absolute ban on challenges.

The policy forms part of the USPTO director’s broader discretion over whether to initiate an inter partes review, commonly known as IPR.

Google challenged this approach because it believed the agency was using a consideration not expressly established as a statutory time limit by Congress. The company argued that the policy could make it harder to identify and cancel invalid patent claims, even when a challenger believes the patent should never have been granted.

The USPTO’s approach, by contrast, gives weight to the stability of established patent rights and the agency’s discretion over how it uses its administrative resources.

The distinction is important: the policy does not automatically make an older patent valid. It affects whether the agency will agree to review its validity through a particular administrative process.

Source: https://www.uspto.gov/patents/ptab/interim-director-discretionary-process

How Did Google’s Legal Dispute Begin?

The case, Google LLC v. VirtaMove Corp., involved U.S. Patent No. 7,519,814, which concerns technology for deploying software applications inside virtual containers.

VirtaMove asserted the patent against Google, alleging infringement. The patent holder has also asserted the patent in disputes involving other technology companies, including IBM, Microsoft, Oracle, Amazon and Hewlett Packard Enterprise, according to Bloomberg Law.

Google sought to challenge the patent through the PTAB, an administrative tribunal within the USPTO that reviews certain patent claims to determine whether they should have been granted.

Google filed petitions seeking inter partes review of VirtaMove’s patent. The USPTO declined to initiate the requested proceedings, citing the patent’s age and the agency’s settled expectations approach.

The patent had been in force for more than 14 years at the time of the agency’s decision, according to the Federal Circuit’s January 2026 order.

Google then pursued legal relief, arguing that the patent office should reconsider its decision without relying on the settled expectations factor.

Source: U.S. Court of Appeals for the Federal Circuit — January 27, 2026 order.

A Timeline of the Case

2011–2012: Congress Establishes the IPR System

Congress created the inter partes review process through the America Invents Act of 2011. The system became available in September 2012.

The process was designed to provide an administrative alternative to challenging patent validity in federal court. A petitioner can ask the PTAB to review patent claims based on certain prior-art grounds, including whether an invention was anticipated by earlier disclosures or would have been obvious.

For companies facing patent infringement lawsuits, IPR can offer a way to challenge patent claims without relying exclusively on costly district court litigation.

The process has since become an important feature of U.S. patent disputes, particularly in technology and other industries where companies face claims involving complex inventions.

2025: USPTO Applies the Settled Expectations Factor

In 2025, the USPTO introduced a revised approach to discretionary decisions about whether to institute IPR proceedings. The framework allowed the agency to consider several factors, including the age of a patent and the parties’ settled expectations.

The policy became controversial because businesses argued that it could make it more difficult to challenge patents that had been in force for years.

Google’s petitions concerning VirtaMove’s patent were among the disputes in which the agency relied on the policy.

January 27, 2026: Federal Circuit Rejects Google’s Request

Google sought a writ of mandamus from the U.S. Court of Appeals for the Federal Circuit, asking the court to direct the USPTO to reconsider its refusal to initiate review.

On January 27, 2026, the Federal Circuit denied Google’s petition.

The court’s order left the USPTO’s decision in place. It did not cancel VirtaMove’s patent or determine that every claim in the patent was necessarily valid. Rather, the immediate dispute concerned whether the agency should be compelled to reconsider Google’s IPR petitions without relying on settled expectations.

April 2026: Google Asks the Supreme Court to Intervene

Google petitioned the Supreme Court for review, raising questions about the USPTO’s statutory authority and whether courts can review the agency’s refusal to initiate IPR when the decision allegedly conflicts with federal law.

The company argued that Congress had allowed patent validity to be challenged during a patent’s term and had not authorised the agency to create a practical time limit based on the age of the patent.

The USPTO and VirtaMove opposed the request for Supreme Court review.

October 19, 2026: Supreme Court Declines the Appeal

On October 19, the Supreme Court declined to hear Google’s petition.

The decision leaves the Federal Circuit’s refusal to order reconsideration in place. It also means the Supreme Court will not resolve the underlying legal questions in this case.

Importantly, declining to hear an appeal is not the same as issuing a ruling that endorses every aspect of the lower court’s reasoning. The USPTO can continue applying its existing framework, while questions about the scope of its authority may arise in future litigation.

Sources: Federal Circuit order.

What Is Inter Partes Review, and Why Does It Matter?

Inter partes review is a procedure that allows a third party to ask the PTAB to reconsider whether certain patent claims should have been granted.

The process generally focuses on arguments involving prior patents and printed publications. It is not a general-purpose mechanism for challenging every possible defect in a patent.

A simplified overview is provided below.

The institution stage is particularly important. A company may believe that a patent is invalid, but the PTAB does not automatically review every petition it receives.

The director has discretion over whether to institute proceedings, subject to the governing statutes and applicable legal standards. That discretion is central to the dispute between Google and the USPTO.

What Did Google Argue?

Google argued that the USPTO’s settled expectations policy exceeds the authority Congress granted the agency.

Its position was that patent law permits challenges to patent validity during the life of a patent and does not establish a general six-year limit for initiating IPR. Google maintained that using the age of a patent as a major reason to refuse review could effectively introduce a limitation that lawmakers did not enact.

The company also argued that the policy could protect potentially invalid patent claims from administrative scrutiny, making it more difficult for businesses to defend themselves against infringement allegations.

These are arguments advanced by Google, not findings established by the Supreme Court. Because the Court declined review, it did not decide whether Google’s statutory interpretation was correct.

Why Does the USPTO Consider Patent Age?

Patent owners may argue that the passage of time creates legitimate expectations about the stability of their rights. A patent may have been licensed, commercialised, used in business planning or relied upon in investment decisions for years.

The USPTO’s framework permits the director to consider those circumstances when deciding whether an administrative review is appropriate.

The policy also reflects the agency’s need to allocate resources among competing petitions. Other considerations may include the strength of a challenge, whether another forum has already considered patent validity, changes in relevant law and broader economic or public-interest factors.

However, the age of a patent does not automatically establish that it is valid. Nor does the policy mean that every challenge involving a patent older than six years must be rejected. The agency’s decision is discretionary, and the circumstances of each petition can matter.

Source: USPTO’s published discretionary process.

How Could the Decision Affect Technology Companies?

The Supreme Court’s refusal to hear Google’s appeal may affect how companies approach patent disputes, particularly when the patents involved have been in force for many years.

Greater Importance of Early Patent Review

Companies may have stronger incentives to assess potentially relevant patents earlier in product development, before a patent becomes older and arguments about settled expectations become more significant.

Businesses may also need to review their patent-monitoring practices and document when they become aware of patents that could affect their products.

Potentially Higher Litigation Costs

If the PTAB declines to review a patent, an accused infringer may have to rely more heavily on other available legal strategies, including defending against infringement claims in federal court.

District court litigation can involve extensive discovery, expert testimony and trial preparation. The costs vary considerably depending on the dispute, the parties and the complexity of the technology.

Greater Predictability for Patent Owners

Patent owners may welcome an approach that gives weight to the stability of older rights. The policy may discourage some late administrative challenges and help owners argue that their patent rights should not be reopened without sufficient justification.

At the same time, businesses that face infringement claims may view the policy as an additional obstacle to challenging patents they believe are invalid.

The Broader Debate Remains Open

The ruling does not establish a nationwide Supreme Court precedent resolving every question about the USPTO’s discretion. Future cases may address the legality of the policy, the extent of judicial review and how the settled expectations factor should be applied.

A separate challenge involving Apple, Google, Intel, Cisco Systems and Edwards Lifesciences also concerned USPTO policies restricting administrative patent reviews. The Federal Circuit rejected that challenge in February 2026, according to Reuters.

That separate case illustrates that the dispute over patent-review discretion extends beyond Google’s fight with VirtaMove.

Frequently Asked Questions

1. Why did the Supreme Court reject Google’s patent appeal?

The Supreme Court declined to hear Google’s challenge to the USPTO’s settled expectations policy. As a result, the Federal Circuit’s decision refusing to compel the agency to reconsider Google’s patent-review petitions remains in place.

2. What is the settled expectations rule?

It is a factor the USPTO may consider when deciding whether to initiate an inter partes review. The age of a patent, including whether it has been in force for more than six years, can influence the decision. It is not an automatic statutory ban on challenging older patents.

3. Did the Supreme Court rule that VirtaMove’s patent is valid?

No. The Court’s refusal to hear the appeal did not determine the patent’s validity on the merits. The immediate dispute concerned the USPTO’s refusal to initiate administrative review and Google’s request to compel reconsideration.

4. What is the PTAB?

The Patent Trial and Appeal Board is an administrative tribunal within the USPTO. It handles certain patent disputes, including petitions seeking inter partes review of patent claims.

5. Can companies still challenge older patents?

Yes, but the available route and likelihood of review depend on the circumstances. The settled expectations factor can affect whether the PTAB agrees to initiate an IPR proceeding. Other legal avenues may also be available, depending on the dispute.

Conclusion

The U.S. Supreme Court’s decision not to hear Google’s appeal leaves the USPTO’s settled expectations approach in place and marks a setback for companies seeking to challenge older patents through administrative review.

The dispute arose from VirtaMove’s patent covering software-container technology and Google’s unsuccessful attempt to obtain PTAB review. Google argued that the agency had exceeded its statutory authority by giving significant weight to patent age, while the USPTO’s framework recognises settled expectations as one factor in discretionary decisions.

The Supreme Court did not issue a definitive ruling on the legality of that policy. For technology companies, patent owners and legal professionals, the case nevertheless highlights the importance of monitoring patents early, understanding the limits of administrative review and following future litigation over the USPTO’s authority.