An ongoing lawsuit targeting discretionary denial practices at the Patent Trial and Appeal Board (PTAB) has hit a potentially decisive setback. In August 2020, a group of tech companies filed suit against then-USPTO Director Andrew Iancu over the agency’s precedential NHK-Fintiv rule, which allows the PTAB to deny institution in an America Invents Act (AIA) review based on the status of a parallel district court case asserting the same patent. Earlier this year, the case was narrowed to a single issue—whether NHK-Fintiv is invalid because the agency had failed to adopt it through notice-and-comment rulemaking under the Administrative Procedure Act (APA)—after the Supreme Court decided not to revisit an earlier Federal Circuit ruling. Now, Northern District of California District Judge Edward J. Davila has granted summary judgment for current Director Kathi Vidal, holding that NHK-Fintiv is not a substantive rule but a general statement of agency policy that falls outside the APA’s rulemaking requirement.