Look, I know what I said in the last post. I can read.
But I just noticed the opinion in Kroy IP Holdings, LLC v. Groupon, Inc., No. 17-1405-CJB (D. Del. Dec. 2, 2022) which had an interesting footnote that's worth pointing out.
Kroy dealt with collateral estoppel issues following a series of IPR's that invalidated numerous claims. Following the the IPR's, the plaintiff asserted new claims and the defendant moved to dismiss arguing that these 20-ish new claims were not materially different from those already invalidated. The plaintiff responded to the motion without devoting much space to reasons why some of the specific claims were not materially different, noting that page limitations made it unreasonable to respond with reference to each claim.
While this might be a sensible argument in the abstract, Judge Burke was not swayed because the plaintiff had not even bothered to fill all of their pages:
At times during oral argument, Plaintiff’s counsel suggested that one reason why the arguments on this point in its briefing were not more developed is that “there were page limits here.” (Tr. at 72; see also id. at 78) But pursuant to this Court’s Local Rules, Plaintiff could have filed an answering brief of up to 20 pages (or, to the extent that 20 pages was not sufficient, Plaintiff could have sought leave of the Court to permit additional pages of briefing). D. Del. LR 7.1.3(a)(4). Instead, Plaintiff filed an answering brief that was seven and a half pages long. (D.I. 120; Tr. at 79) So Plaintiff had more than enough briefing space to make detailed arguments about the collateral estoppel issues at play here. (D.I. 121 at 11; Tr. at 80) The Court will only address herein the arguments Plaintiff did make.
Id., at 14.
The Court was also not particularly receptive to arguments that Plaintiff did not want to be "boxed in" by taking any particular positions at this early stage of the case:
Plaintiff’s counsel also suggested during oral argument that a reason why Plaintiff did not say more in its briefing about questions of materiality was because Plaintiff did not want to risk being “boxed in” to those positions “without the proper claim construction [having yet occurred]” or being “trapped into making arguments now that could impact our infringement case” in the future. (Tr. at 73, 81-83) But this cannot be a viable defense to Defendant’s Motion. Patentees, for example, face similar circumstances when responding to motions to dismiss premised on Section 101 grounds; there, as here, a movant is arguing that the presence of an affirmative defense, evident in the complaint and exhibits attached thereto, warrants dismissal of the plaintiff’s pleading. In the Section 101 context, it is not enough for a patentee to simply point to the fact that the case is at an early stage and suggest that, as a result, it need not persuasively address the merits of the defendant’s motion. Instead, if there are reasons why the motion should be denied, the patentee is expected to actually express those reasons to the Court; failure to do so could lead to a grant of the motion.
Id.
Obviously, I'm not saying that you should always fill exactly your page limits (encouragement is hardly necessary there). But, if you plan to argues that you don't have enough space, you really should fill what you have.
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