Earlier this month we talked about the required structure for briefs in the District of Delaware. As to the required "argument" section, I said "We all know what this is." Maybe I was wrong.
An "Argument" Section That Wasn't
On Friday, the Court denied a motion for summary judgment for violating the local rule on briefing structure, because it's "argument" section failed to conform to the local rule on briefing structure, LR 7.1.3(c)(1)(f), and had exceeded the page limits for briefing. Roger P. Jackson, M.D. v. NuVasive, Inc., C.A. No. 21-53-RGA, D.I. 443 (D. Del. Mar. 14, 2025).
Basically, the patentee moved for summary judgment of infringement. But, rather than laying out the claim elements and how the accused products meet each of them, they just talked about the patent generally and referred to extensive claim charts from the expert report.
Judge Andrews denied their motion for exceeding the page limits (by citing the expert reports) and for failing to actually include argument:
Jackson argues that of the thirty outstanding claims, there are seventeen . . . for which Jackson's infringement expert, Dr. Errico, offered infringement analyses and for which NuVasive's infringement expert, Mr. Fallin, offered no rebuttal. . . . D. Del. LR 7.1.3(a)(4) sets out briefing page limits. D. Del. LR 7.1.3(c)(1)(F) requires an argument. Jackson's briefs disregard both of these Local Rules. There is a brief section on "Twist-in-Place technology, but most of "argument" in support consists solely of incorporating hundreds of pages of expert report by reference and providing no argument except "read our expert's report." Nowhere do Jackson's briefs outline or summarize Dr. Errico's report with an eye toward the elements of the seventeen claims; instead, Jackson simply explains, "Dr. Jackson has shown infringement through Dr. Errico's Declaration and reports[.]" (D.I. 207 at 8). Or separately, "Dr. Errico's declaration and Expert Reports set forth his uncontested analysis with respect to the [Reline 1601XXXX family of Accused Products and the] other Representative Products." (Id. at 10). Jackson then cites about 1600 pages of expert reports. (Id.). I have struck briefs for far less. . . .
Because Jackson's briefing violates Local Rules, I deny his motion for partial summary judgment of infringement.
Id. at 5-6.
That is not a surprising result. It's hard to imagine any Court digging through 1600 pages of expert report citations to figure out what elements of the claims were not rebutted (not to mention that the accused infringer can potentially show a failure to prove non-infringement even absent responsive expert testimony).
This is actually a recurring challenge when moving for summary judgment of infringement or invalidity—situations where the moving party has to show that all of the claim elements are met. That can be tough with limited pages and a requirement for double spacing lines. But, in the right case, it can be done.
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