In Commscope Techs. LLC v. Dali Wireless, Inc. the Director of the U.S. Patent Office issued a precedential decision that discretionary denial requires the Patent Trial and Appeal Board.
On June 21, 2022, USPTO Director Katherine K. Vidal issued a memorandum titled "Interim Procedure for Discretionary Denials in AIA Post-Grant Proceedings With Parallel District Court Litigation."