It's become fairly common to see opinions in Delaware noting that an argument has been waived when presented only in passing. The classic example is something discussed only in a footnote.
This of course leads to the question of which other bits of a brief are too scanty to hide an argument. Might there be other spots we should know to avoid?
Judge Williams opinion last week in Game Play Network, Inc. v. Lien Games Racing LLC, C.A. No. 23-323-GBW-CJB, D.I. 34 (D. Del. Jan 3, 2025) gave us just such an example of a place an argument can not be placed.
As a bit of background, local rule 7.1.3 lists a series of sections required for briefs including "nature and stage of the proceedings," "conclusion," and -- important here -- "argument." The plaintiff there had lost a 101 motion and moved for reconsideration, alleging among other things, that the Court had neglected to address several claim construction issues. In particular, the motion for reconsideration argued that the "statement of facts" portion of their original opposition brief had discussed several relevant terms and the need for construction.
Judge Williams found that the passing reference to claim construction in the argumetn section was insufficient to create an issue of fact:
GPN was vague about the purported need for claim construction. Like the patentee in VeriPath, Inc. v. Didomi, 842 F. App'x 640 (Fed. Cir. 2021) (nonprecedential), GPN did not adequately represent that the Court needed to engage in claim construction before resolving the motion to dismiss. Instead, like the patentee in VeriPath, Inc. Didomi, GPN merely contended that "claim construction may be needed." Such a vague contention about the potential need for claim construction is insufficient to avoid a grant of a motion to dismiss under § 101
Id. at 6 (internal citations omitted)
Moreover, and more interesting, he found that any additional arguments made only in the statement of facts had been waived:
To the extent that GPN raised additional claim construction contentions exclusively outside the argument section of its opposition brief, those contentions are forfeited.
Id. at 6 n.5 (internal citations omitted)
So there you go -- make sure the arguments go in the argument section.
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