Oral argument of the day: NOBELBIZ, INC. v. GLOBAL CONNECT, LLC

The oral argument of the day is from NOBELBIZ, INC. v. GLOBAL CONNECT, LLC, No. 2016-1104 (Fed. Cir. July 19, 2017).  I enjoyed listening to this oral argument because there were a lot of references to various court precedents, particularly with respect to claim construction issues.  One of the nice aspects of listening to oral arguments like this is that they serve as a nice refresher about holdings of previous cases.

Prospective appellants will be interested in one sound bite from Judge Dyk.  During the oral argument, the appellee challenged the appellant’s reliance on the summary of the patent to construe the claims — because that argument was apparently not used at the district court.  Judge Dyk responded that it was not waiver to make new arguments on appeal as long as the issue was raised below.  He asserted that there is only waiver of issues — not waiver of arguments. [Listen].  The appellee attempted to refer the court to the Federal Circuit’s Conoco decision.  I believe the appellee was referring to Conoco, Inc. v. ENERGY & ENVIRONMENTAL INTERN., 460 F.3d 1349 (Fed. Cir. 2006), which states:

Normally, a district court faced with a patent infringement suit engages in a two-step analysis, involving: (1) construing the disputed claims of the patent — a matter of law — and (2) comparing the accused device to the patent claims — a matter of fact. Cybor Corp., 138 F.3d at 1454, 1456. However, legal issues in patent infringement suits are not immune to the doctrine of waiver on appeal, and except for certain circumstances, those issues not raised below at the district court cannot be heard for the first time on appeal. Interactive Gift Express, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1344-45 (Fed. Cir.2001). Thus, a party may not introduce new claim construction arguments on appeal or alter the scope of the claim 1359*1359 construction positions it took below. Id. at 1346-47; see also NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1296 (Fed. Cir.2005). Moreover, litigants waive their right to present new claim construction disputes if they are raised for the first time after trial. See Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1360 (Fed. Cir.2004).

Conoco, Inc. v. ENERGY & ENVIRONMENTAL INTERN., 460 F.3d 1349 (Fed. Cir. 2006).  [Link]

The majority decision in NOBELBIZ, INC. v. GLOBAL CONNECT, LLC did base its decision, in part, on the summary of the patent. It did not mention Conoco.

You can listen to the oral argument here: [Listen].

You can review the court’s decision: [here].

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