Last month, Acting USPTO Director Coke Morgan Stewart rescinded a memorandum introduced by her predecessor, Kathi Vidal, that had limited the circumstances in which the Patent Trial and Appeal Board (PTAB) could discretionarily deny institution under the NHK-Fintiv rule. Now, the USPTO has taken two more notable steps on discretionary denials: On March 24, PTAB Chief Administrative Patent Judge (APJ) Scott Boalick issued a memorandum that explicitly repudiates the key points from the rescinded 2022 guidance; and on March 26, Stewart released another memorandum that creates a bifurcated institution process for America Invents Act (AIA) reviews. Now, the USPTO director is to decide all requests for discretionary denial, and only after the director rejects such a request may a PTAB panel then address the merits and non-discretionary factors. Significantly, the memorandum indicates that in addition to the factors established by PTAB precedent, the director will consider the PTAB’s workload in deciding whether to discretionarily deny institution.