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Intellectual Property Law

: FileWrapper

New appeallate counsel insufficient reason to consider arguments not raised before district court

By McKee, Voorhees & Sease, P.L.C.

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In a decision today, the Federal Circuit affirmed a district court's decision finding two claims of a patent anticipated. The district court, adopting a magistrate judge's Report and Recommendation, held that the claims were invalid and granted summary judgment. After retaining new counsel for the appeal, the patentee argued the prior art did not anticipate the claims based on a claim element not argued before the district court, either to the magistrate judge or when the magistrate judge's report was challenged before the district judge.

The Federal Circuit affirmed. The court refused to consider the patentee's new argument on appeal because it had not raised it below. New arguments are typically not considered on appeal, and none of the narrow exceptions to that rule applied to this case. Simply retaining new counsel for appeal was insufficient. As a result, because the patentee had abandoned the arguments it made before the district court regarding anticipation, the court affirmed without addressing the merits of the patentee's arguments.

More concerning Golden Bridge Tech. v. Lucent Tech. after the jump.

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Full post as published by FileWrapper on May 21, 2008 (boomark / email).