Golden Bridge Technology v. Nokia and Lucent Technologies (CAFC 2007-1215)

Golden Bridge had been downed by WO9746041 (Häkkinen) and a CDMA standard (IS-95A). On appeal, Golden Bridge threw up a new argument.

The only argument that Golden Bridge advances on appeal with regard to whether the Häkkinen reference anticipates... - [] an issue of fact never presented to the district court. See Para-Ordnance Mfg., Inc. v. SGS Imps. Int'l, Inc., 73 F.3d 1085, 1088 (Fed. Cir. 1995) (stating what a prior art reference discloses is a question of fact).

Golden Bridge admitted the argument was new.

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 CAFC reminded Golden Bridge that first-time arguments appearing on appeal are only considered in "limited circumstances."

"[I]t is the general rule . . . that a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff, 428 U.S. 106, 120 (1976). Our precedent generally counsels against entertaining arguments not presented to the district court. Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997) ("In short, this court does not 'review' that which was not presented to the district court."). While appellate courts are given the discretion to decide when to deviate from this general rule of waiver, see Singleton, 428 U.S. at 121, we have explained that "prudential considerations" articulated by the Supreme Court counsel against hearing new arguments for the first time on appeal absent limited circumstances, see Forshey v. Principi, 284 F.3d 1335, 1353-54 (Fed. Cir. 2002) (quoting Hormel v. Helvering, 312 U.S. 552, 556-57 (1941)).

The only excuse coughed up by Golden Bridge was new appellate counsel - not one of the limited circumstances discussed in Forshey.

Golden Bridge cannot simply choose to make its arguments in iterative fashion, raising a new one on appeal after losing on its other at the district court. This is an appellate court and as such we abide by the general rule that new arguments will not be decided in the first instance on appeal. Golden Bridge offers no arguments which warrant our deviation from this general rule, and no interest of justice that demands our consideration of an issue it could have, but failed to, raise below.

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. Substitution of new appellate counsel is not one of, or even in proportion to, the limited circumstances outlined in Forshey. New appellate counsel does not present an exceptional case or circumstance in which our declining review will result in injustice. 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.

Golden Bridge brought new facts for the CAFC to consider, but that is not what an appeals court does.

In asking us to decide whether the Häkkinen reference discloses synchronization prior to transmission, not only does Golden Bridge ask us to decide a new issue raised for the first time on appeal, but also is asking an appellate court to make factual findings. We decline to determine what a prior art reference discloses, a fact finding, in the first instance on appeal. Appellate courts review district court judgments; we do not find facts. Middleton v. Dep't of Def., 185 F.3d 1374, 1383 (Fed. Cir. 1999) ("[A]s an appellate court, we may not find facts . . . .").

Golden Bridge begged for at least remand to have the new arguments considered. Denied.

District court ruling affirmed.