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

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 pivo…