The Board was kicking around the idea of single-judge institution decisions for most of my tenure there. But now they’ve formally requested comments on a proposed pilot program for single-judge institution decisions (deadline recently extended to October 26, 2015). There’s ample precedent for this from the interference practice, where single-judge declarations of interference have been the norm for decades.
The rationale for introducing single-judge orders is simple: conserving judicial resources. Neither the statute nor the regulations governing IPR require three-judge panels for institution decisions, and institution decisions do not involve the disposition of any rights.
Would it work for IPR? In theory, yes, but it requires a very high degree of confidence in the APJ’s making the institution decisions and a more robust rehearing practice. Some of the APJ’s have been judges for only a few months, and few have been judges for 4 or more years. Are they ready to operate without a net? I handled well over 100 IPR proceedings while serving as an APJ, and right up to the very last one, I regularly incorporated views of other panel members in the decisions I wrote.
I am especially hesitant to endorse single-judge institution decisions because they are by statute unreviewable on appeal. A denial at institution is the end of the road for the petitioner, aside from a rehearing request. Perhaps rehearings will have more teeth when a three-judge panel is reviewing a single judge’s decision. But the track record so far on granted rehearings is dismal.
On the whole, I believe less risky options exist for conserving judicial resources. First and foremost: shorter opinions. Institution decisions need be little more than a listing of the instituted challenges and any claim constructions essential to the determination. Interlocutory orders not touching the substance need not be memorialized in writing. Shorter opinions are possible over on the appeals side, too.