Recent Federal Circuit opinions reveal a trend of deciding cases on grounds not raised by parties in appeals, raising concerns about fairness and the adversarial system. This practice, highlighted by the McLeay v. Stewart case, prompted a petition to the Supreme Court. Dr. Matthew McLeay argues that the Federal Circuit affirmed a rejection of his patent application based on enablement arguments the USPTO had previously abandoned. The petition seeks clarity on the appropriateness of such judicial actions, emphasizing the need for due process and the right to address pivotal issues.
"The problems with this approach: it undermines the adversarial process, creates a fairness problem, and deprives 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."
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