Can't Change Your Argument Against Anticipation on Appeal

Golden Bridge Technology, Inc., v. Nokia, Inc., [2007-1215] (May 21, 2008) [MOORE, Michel, Newman] The Federal Circuit affirmed summary judgment that claims 13 and 23 of U.S. Patent No. 6,574,267 are anticipated by PCT Publication No. WO9746041 to Häkkinen et al.
BRIEF: On appeal, the patentee raised an entirely new ground for distinguishing the PCT publication. The Federal Circuit said “We cannot sanction the iterative process Golden Bridge would like to pursue.” The Federal Circuit said that it would be unfair to allow Golden Bridge to bring some arguments distinguishing the Häkkinen reference during proceedings at the district court and then, only after those arguments have been completely rejected, bring entirely different arguments on appeal for the first time. The only explanation offered by Golden Bridge for why this court should consider this new argument on appeal is that it has new appellate counsel. The Federal Circuit held that this was insufficient, noting to hold otherwise would open the door to every litigant who is unsuccessful at the district court to simply hire new counsel and then argue he should get to raise new issues on appeal.