Uninvited Guests: The Federal Circuit’s Problematic Revival of Waived Arguments

by Dennis Crouch

In a number of recent opinions, the Federal Circuit decided the case on grounds that were not raised on appeal by either party.  This unusual approach is something bound to happen with expert tribunals such as the Federal Circuit.  The problems with this approach: it undermines the adversarial process, creates a fairness problem, and depriving the parties of a meaningful opportunity to address—and potentially correct—issues pivotal to the court’s ultimate determination. A recently filed petition for certiorari asks the Supreme Court to step-in and provide the CAFC with guidance in the impropriety of the Federal Circuit's sua sponte revival of arguments that the government has impliedly waived in the appeal. In McLeay v. Stewart, petitioner Dr. Matthew McLeay particularly challenges the Federal Circuit's decision to affirm the rejection of his patent application based on enablement sub-grounds that the USPTO had effectively abandoned in its briefing. [Read the Petition].